Employers should now take more factors into consideration when choosing whether to screen employees for Covid-19, according to new guidance from the EEOC.
Going forward, “employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees, the US Equal Employment Opportunity Commission said Tuesday in an update to its technical assistance guidance.
The agency enforces federal workplace nondiscrimination laws, including the Americans with Disabilities Act, which protects workers from certain medical examinations or inquiries.
The EEOC previously said Covid-19 testing for on-site employees was legal across the board. Now, employers will have to prove that testing employees is a “business necessity,” which can be based on factors like community transmission, workers’ vaccination status, or certain working conditions.
“This change is not meant to suggest that such testing is or is not warranted; rather, 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,” the agency said in its update.
The guidance also makes clear that employers can’t require an antibody test from employees as a requirement for returning to the workplace, based on Centers for Disease Control and Prevention guidance that those tests can’t determine whether someone currently has an infection or if that person is immune.
The update also makes clear that employers may test potential employees for Covid-19, as long as they execute that policy uniformly. An employer may only rescind a job offer after a positive Covid-19 test if it is absolutely necessary that the prospective employee start immediately and in-person, the guidance says.
The agency updated its guidance in May 2021 to make clear that employers can offer bonuses and other incentives to encourage employees to get the Covid-19 vaccine.
Litigation over vaccine mandates and testing requirements has continued to make its way through the courts since the start of the pandemic. Court decisions upholding or rejecting federal vaccination requirements “do not affect any statements made in this publication regarding employer and employee rights and responsibilities under the equal employment opportunity laws with respect to employers that require COVID-19 vaccinations,” according to the EEOC guidance.