Written By Digital Content Editor Thomas Ahearn

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Guidance about “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” by updating several Questions and Answers (Q&As) including a question about administering COVID-19 viral tests in the workplace.  

The EEOC’s assessment at the outset of the Coronavirus (COVID-19) pandemic in March 2020 was that the Americans with Disabilities Act (ADA) standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing.

In the EEOC Guidance, Question A.6. under “A. Disability-Related Inquiries and Medical Exams” asks: “Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?”

With the revision of Question A.6. in the Guidance, the EEOC makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.

In addition, Question A.6. offers employers possible factors to consider in making this assessment, including the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, and the degree to which breakthrough infections are possible.

The EEOC stresses that this change is not meant to suggest that such testing is or is not warranted. However, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.

COVID-19 is a potentially deadly respiratory illness that spreads from person to person. As of July 2022, there are approximately 557 million global cases and 6.3 million global deaths, while the United States leads the world with approximately 88 million cases and 1 million deaths, according to research by Johns Hopkins University.

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