The EEOC Has Changed its Stance on COVID-19 Testing of Employees

 

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on workplace COVID-19 testing.  The EEOC is responsible for overseeing federal employment civil rights statutes, including the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act (“GINA”).

 

At the outset of the COVID-19 pandemic in 2020, the EEOC concluded that employers could always require workers to be tested for COVID-19 under the ADA.[1]  The ADA, among other things, imposes standards for medical inquiries and examinations of employees. In particular, once an employee begins working for an employer, the employer may only make medical inquiries or require employee medical examinations when “job related and consistent with business necessity.”  The EEOC regards a COVID-19 test or screen as a “medical examination” under the ADA.

 

The EEOC’s updated guidance states that employers must now evaluate whether current pandemic and individual workplace circumstances justify COVID-19 screening of employees.  Specifically, the EEOC now states that to establish the “business necessity” of a COVID-19 test, an employer should consider:

 

  • The level of community transmission;
  • The vaccination status of employees;
  • The accuracy and speed of processing for different types of COVID-19 viral tests;
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
  • The ease of transmissibility of current variants;
  • The possible severity of illness from the current variant;
  • Types of contacts employees have with others in the workplace (such as working with medically vulnerable individuals); and
  • The potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC states that in making these assessments, employers should consult the latest CDC guidance and other relevant sources. The EEOC further noted that its updated guidance is not intended to suggest that workplace COVID-19 testing is or is not warranted, but rather that employers must make an individualized assessment to determine if such testing complies with the ADA.

 

The EEOC Finds Collection of COVID-19 Test Results of Employee Family Members Violates the GINA

 

Earlier, on July 6, 2022, the EEOC issued a press release stating that it had reached an agreement with a Florida-based dermatology practice whereby the practice would cease collecting COVID-19 test results of its employees’ family members.  According to the EEOC, this practice violated the GINA, which prohibits employers from requesting, requiring or purchasing genetic information about applicants, employees or their family members. Pursuant to the GINA, “genetic information” includes the manifestation of a disease or disorder in an employee’s family members. The EEOC agreement required the medical practice to restore affected employees’ lost leave or back pay, pay them compensatory damages, conduct mandatory training on EEO laws and post notices about the agreement.

 

Employers should carefully consider their employment policies and practices related to COVID-19 to ensure compliance with applicable federal, state and local laws. It is clear from the EEOC’s updated guidance that permissible practices will change based upon the evolving virus and workplace conditions. Please contact your employment law attorney at Liff, Walsh & Simmons for questions or assistance.

 

[1] The ADA and GINA cover employers who employ 15 or more employees, state and local government employers, employment agencies and labor unions.

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Melissa Menkel McGuire

Melissa Menkel McGuire

Melissa Menkel McGuire is a Partner of Liff, Walsh & Simmons and a member of the Employment Practice Group. Ms. McGuire regularly provides advice and counsel to businesses on all aspects of employment law, practicing before federal and state courts and administrative agencies throughout Maryland, West Virginia and the District of Columbia. She aggressively defends claims alleging violations of wage and hour law, wage payment and collection law, family and medical leave law, employment civil rights laws and breach of contract. She also defends employment tort claims such as wrongful discharge, negligent hiring and retention and defamation. Contact Melissa at MMcGuire@Liffwalsh.com or at (410) 573-2904.

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