Mandatory Screening COVID-19 Test Must Now Be Supported by Business Necessity and Individualized Assessment

Yesterday, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers (“Q&A”) related to COVID-19, the Americans With Disability Act (“ADA”), the Federal Rehabilitation Act, and other EEOC laws. Under the revised guidance, going forward, employers who choose to screen employees for COVID-19 must now take into consideration more factors.

Since March 2020, the EEOC’s guidance had been general screening tests of employees were legal. Now, if an employer seeks to implement, or continue, general screening tests for on-site employees, testing must meet the EEOC’s “business necessity” standard. The EEOC lists as “possible” considerations: (1) level of community transmission; (2) vaccination status of employees; (3) accuracy and speed of the different available tests; (4) possibility of breakthrough infections for vaccinated employees; (5) ease of transmission of current variants; (6) possible severity of illness from a current variant; (7) employee contact within the workplace (such as working with medically vulnerable individuals); and (8) impact on operations if an infected individual enters the workplace (Amended Q&A 6). In making an assessment, the EEOC advises employers to consult with CDC guidance to determine whether screening testing is appropriate.

The EEOC has stated the change is not intended to suggest whether testing is, or is not, warranted. It has further stated that the intent is to require employers to do an “individualized assessment” whether testing is warranted and is consistent with the ADA.

In publishing the Q&A update, the EEOC has left in place its September 2020 guidance regarding testing an individual employee. That guidance (Q&A 9) remains that if the employer desires an individual employee to test, the employer must first have a reasonable belief, based on objective evidence, that the employee “might” have the disease. That reasonable belief must be based upon a display of COVID-19 symptoms.

Employers hoped COVID-19, and its workplace impact, would now be something in the rearview mirror, but that is not the case. As the Wall Street Journal reported yesterday, COVID-19 is circulating widely as the BA.5 Omicron subvariant. This subvariant elevates the risk of reinfection and dominates case counts. For most of the country, there seems little chance of a short-term reprieve from the continuing pandemic. The Biden Administration reportedly plans to extend the COVID-19 public health emergency, currently set to expire on July 15, 2022. OSHA has stated it intends to update its guidance on mitigation and prevention of COVID-19 in the workplace. Employers in states that have state-specific OSHA laws must look to the temporary standards state agencies imposed and continue to follow those rules. And employers subject to local rules (such as New York City’s rule that employers may not permit unvaccinated workers to come to the workplace) must review and comply with those orders. The conclusion is that a “one size fits all” rule, while administratively efficient, runs afoul on the revised EEOC rule.

Looking back over the last two years at all the starts, stops, lefts and then U-turns, the poetic words of Jerry Garcia seem now predictive – “What a long, strange trip it’s been.”

If you have any questions about the new EEOC rule and how it affects your workplace, please contact Philip A. Toomey, the leader of Leech Tishman’s Employment and Labor Practice Group. Philip can be reached at 424.738.4400 or ptoomey@leechtishman.com.

Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman

Leech Tishman’s Twitter: https://twitter.com/LeechTishman

Leech Tishman’s Company Page on LinkedIn: https://www.linkedin.com/company/leech-tishman

Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, construction, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, emerging cyber technologies, energy & natural resources, healthcare, and hospitality industries. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota, and Washington, D.C.