Employers May Administer COVID-19 Viral Test as Mandatory Screening Measure, But Not Antibody Testing, According to EEOC Guidance

Shana Velez, Esq.

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance allowing employers to administer mandatory worksite COVID-19 viral testing to determine whether it is safe for employees to be present in the workplace.[1]  A COVID-19 viral test is used “to detect the presence of the COVID-19 virus.”[2] Previous EEOC guidance stated that mandatory COVID testing was automatically justified due to the pandemic although the Americans with Disabilities Act (“ADA”) requires employers to show a test or other medical examination is job-related and consistent with business necessity before the employer can implement mandatory testing. [3] The EEOC guidance precludes employers from using an antibody test because the Centers for Disease Control and Prevention (“CDC”) guidance does not find that antibody testing satisfies the ADA’s business necessity standard for medical examinations or inquires for employees. [4]

The COVID-19 viral testing will meet the ADA’s business necessity standard when consistent with guidance from the CDC, Food and Drug Administration (“FDA”), and/or state and local public health authorities and, to satisfy the business necessity standard, employers may also consider: the level of community spread, vaccination status of employees, ease of transmissibility of the current variant(s), and the types of contacts employees may have as part of their job duties.[5]

Although guidance related to COVID-19 may not change as frequently as it did during the height of the pandemic, it is important for employers to stay abreast of the CDC and other state and local governmental agencies’ COVID-19 directives, including the EEOC guidance and how the agency may view employer actions related to testing employees for COVID-19. 

[1] See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, p. 4-7/75.

[2] Id. at p. 5/75.

[3] Id.

[4] Id. at 7/75 (According to the CDC, “antibody testing my not show whether an employee has a current infection, or establish that the employee is immune to infection.”)

[5] Id. at p. 5/75.