As the COVID pandemic wanes, the EEOC has repeatedly updated its guidance on COVID testing by an employer. In its latest version from earlier this month, the EEOC advised that viral testing should be more limited and based on a business necessity analysis. This analysis will include current pandemic circumstances and individual workplace circumstances. Then, the viral testing must be “job-related and consistent with business necessity.” Specifically, the EEOC offered seven factors to analyze the “business necessity” conclusion:
How an employee in the workplace with COVID would affect operations;
How much such an employee would have contact with fellow employees and/or others (particularly those at high risk) in the workplace;
The possible severity of illness from, and ease of transmission of, the current variant;
How likely those with current booster shots are likely to have breakthrough cases;
How quick and reliable different types of viral COVID tests are;
What percentage of employees are vaccinated and boosted; and
The community transmission level.
The EEOC also weighed in on applicant testing and is far more encouraging towards it. For on-site applicants during the pre-offer period, COVID screening tests (viral test, temperature check, etc.) are permissible as long as all in that category are tested. Similarly, COVID screening after a conditional job offer is made is also acceptable if done for everyone in the same position.
Given how unique each employment situation is and how rapidly the law is still changing about COVID, it is best to review testing policies with experienced employment law counsel.
If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.