EEOC Updates Guidance on COVID Testing and Other Related Topics

As the pandemic continues to rage on, the EEOC quietly updated its COVID guidance earlier this month rolling back some (but not all) of the discretion afforded to employers.

The biggest change has to do with testing as a condition of returning or remaining at work.  The new guidance puts some bumpers on employers’ use of such testing. It now will be treated a “medical examination” and as such must be “job related and consistent with business necessity.”

But that being said, the guidance makes it clear that employers will still meet the standard when it is consistent with CDC guidance or guidance from appropriate public health authorities.

Indeed, it now states that:

Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.

Given the high levels of community transmission going on right now, it’s hard to think of a situation where testing wouldn’t still be allowed under this rule, but still, employers should start to exercise caution in continuing with a testing regimen.

There are other tweaks to the guidance as well including on whether an employer can withdraw a job offer when a new employee has a positive COVID test.  Employers should be mindful that the rules continue to change, however modestly.