COVID-19 continues well into 2022 and employers continue to adapt to the ever-changing world of COVID.  Recently, the Equal Employment Opportunity Commission (the “EEOC”) updated its COVID guidance for employers.  The following are key takeaways from the recent EEOC guidance:

  • Under the Americans with Disabilities Act (the “ADA”), an employer, as a mandatory screening measure, may administer a COVID-19 viral test when evaluating an employee’s initial or continued presence in the workplace if the employer can show that the test is job-related and consistent with business necessity. If an employer seeks to implement screening testing for employees such testing must meet the “business necessity” standard.  According to the EEOC, considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
  • When an employee returns to the workplace after being out with COVID-19, the ADA allows an employer to require a confirmation from a qualified medical professional explaining that the individual is able to safely return. 
  • Under the ADA, an employer may not require antibody testing before permitting employees to re-enter the workplace. 
  • Employers may screen applicants for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job. 
  • An employer may not postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at risk from COVID-19.

Click here for further COVID-19 guidance from the EEOC.