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On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employer-required testing for COVID-19.
COVID-19 Viral Testing: Employers that are requiring an employee to be tested for COVID-19 must now satisfy the Americans with Disabilities Act (ADA) standard for medical examination. Therefore, to continue to require testing an employer must show that a COVID-19 viral test is job-related and consistent with business necessity.
In making a "business necessity" assessment the employer may consider community transmission levels, working conditions, breakthrough infection risk, workers' vaccination status, ease of transmissibility of current variants, possible severity of illness, potential impact on operations if an employee enters the workplace with COVID-19.
COVID-19 Antibody Testing: The new EEOC guidance also states that employers may not require an employee to submit to a COVID-19 antibody test to enter the workplace. This is based on the recent CDC guidance which states that antibody testing may not show whether an employee has a current infection or establish that an employee is immune to infection. Due to the CDC guidance, antibody testing does not meet the ADA "business necessity" standard for medical examinations. Therefore they are not allowed under the ADA or EEOC.