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On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance which included new COVID-19 screening protocols. Here’s what employers need to know:

Legality of COVID-19 Viral Tests Depends. Prior to the new guidance, COVID-19 viral testing was presumed permissible. Now, however, administration of a COVID-19 viral test as a screening measure must be “job-related and consistent with business necessity.” Whether testing is a business necessity can be based on several considerations, including:

• level of community transmission;
• vaccination status of employees;
• accuracy and speed of processing for different types of COVID-19 viral tests;
• degree to which breakthrough infections are possible for employees who are up-to-date on vaccinations;
• ease of transmissibility of the current variant(s);
• possible severity of illness from the current variant(s);
• types of contacts employees may have with others in the workplace; and
• potential impact on operations if an employee enters the workplace with COVID-19.

In making these assessments, the EEOC advises employers to check the latest CDC guidance and any other relevant sources to determine whether screening testing is appropriate for employees. Additionally, the guidance emphasized that employer use of COVID-19 screens at a workplace will meet the business necessity threshold when adhering to up-to-date recommendations from the Centers for Disease Control (“CDC”), Food and Drug Administration (“FDA”), and/or public health authorities.

Antibody Testing is Still a No Go. Similar to its previous position, the EEOC highlighted that an employer cannot require antibody testing before permitting employees to re-enter the workplace. The EEOC reasoned that current CDC guidance indicates that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; thus, it does not meet the business necessity standard.

Rescinding Job Offers/Applicant Testing. The guidance clarifies that employers may test applicants for COVID-19, after making a conditional job offer, so long as it does so for all entering employees in the same type of job. The guidance further addresses whether an employer may withdraw a job offer if the individual has tested positive, has symptoms or has been exposed to COVID-19. According to the guidance, a job offer can only be rescinded if: (1) the job requires an immediate start date; (2) CDC guidance recommends the person not be in proximity to others; and (3) the job requires such proximity to others, whether at the workplace or elsewhere. The EEOC encourages employers to consult current CDC guidance to determine when and how such individuals may safely enter the workplace.

Return to Work. Although the guidance still permits employers to require a note from a medical professional when employees are returning to work after being out with COVID-19, it now encourages employers to consult CDC guidance and to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.

Click here to review the full guidance.

As the pandemic continues to weigh and reshape the workplace, we can expect to see more guidance either clarifying or changing how employers navigate COVID-19 related issues. We will continue to monitor and provide updates on any significant changes.