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Equal Employment Opportunity Commission Puts End To Pandemic Justified Viral Screening For COVID-19 – Employee Benefits & Compensation



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The Equal Employment Opportunity Commission (“EEOC”)
recently updated its guidance in July of 2022. According to
the new guidance, the COVID-19 pandemic no longer
automatically meets the business necessity requirement for medical
examinations i.e. COVID-19 testing. This means that employers are
now required to conduct an individualized assessment to determine
whether COVID testing is warranted based on “evolving pandemic
circumstances.” Previously, employers were not required to
conduct an individualized assessment because the pandemic justified
viral screening of “employees to prevent workplace
transmission of COVID-19.” Simply put, employers could conduct
COVID-19 testing at any time, for any reason. However, now
employers may only utilize COVID-19 testing under the business
necessity standard.

COVID-19 viral test is considered a
medical examination within the meaning of the Americans with
Disabilities Act (“ADA”). This includes both rapid tests
and laboratory tests. Under the ADA, employers are prohibited from
conducting medical examinations unless “such
screening is ‘job-related and consistent with business
necessity
.'”

The EEOC outlined possible considerations employers may use when
conducting the business necessity assessment, which includes:

Employer’s use of a COVID-19 viral test to screen
employees who are or will be in the workplace will meet the
“business necessity” standard when it is consistent
with guidance from the Centers for Disease Control and Prevention
(CDC),  Food and Drug Administration (FDA), and/or state/local
public health authorities that is current at the time of
testing
.
  Non-healthcare employers should
utilize the Interim Guidance for SARS-CoV-2 Testing in
Non-Healthcare Workplaces
 when conducting the business
necessity assessment. It is important to note that the CDC has
continuously updated its guidance over the course of the pandemic
and employers should ensure they have the most up-to-date
information.

Specifically, employers should utilize this business necessity
assessment when they are conducting screening testing. Screening testing means “[t]esting
asymptomatic persons without recent known or suspected exposure to
SARS-CoV-2 for early identification, isolation, and disease
prevention.”

The Occupational Safety and Health Administration
(“OSHA”) is in the process of updating their Guidance on Mitigating and Preventing the Spread of
COVID-19 in the Workplace
 “to reflect developments in
science, best practices, and standards.” Employers should keep
in mind the continuing obligation under the OSHA general duty standard to provide
“a place of employment which [is] free from recognized hazards
that … caus[e] or are likely to cause death or serious
physical harm to … employees.” This is particularly
crucial when evaluating quarantine, isolation, and return to work
guidance
 for suspected or confirmed cases of COVID. While
the pandemic is ongoing, employers should continue to enforce the
disclosure of COVID symptoms. And employers must maintain
all illness-related information as a “confidential medical record in compliance with the
ADA
.”


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