EEOC Updates Guidance on COVID-19 Testing

The EEOC released an update on Sept. 8, 2020 to its technical assistance publication entitled “What You Should Know about COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (WYSK).” The updated guidance provides 18 new questions and answers adapted from its prior guidance. In addition, the EEOC updated two of its prior statements about COVID-19. More specifically, one Q&A (Question A.6) provides more detail on the EEOC’s position related to an employer’s ability to administer or require a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace. The EEOC states that employers may require testing before initially permitting the employee to enter the workplace and/or periodically to determine if the employee has COVID-19 and is a direct threat to others. If the testing is consistent with current CDC guidance, the EEOC states that the testing will meet the “business necessity” requirement for medical examinations under the Americans with Disabilities Act (ADA). This clarifies for employers that they can follow the CDC guidelines without running afoul of the ADA.

A second update (Question D.8) relates to an employer’s ability to invite employees to advise the employer if the employee needs a reasonable accommodation before entering the workplace. The EEOC states that the employer may extend such an invitation and initiate a discussion focused on whether the employee has a disability and why an accommodation is needed. The employer cannot, however, require that all accommodation requests be made by a specified date. The employer must consider accommodation requests made at a later date.

“Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable,” the EEOC said.

The CDC and the U.S. Food and Drug Administration may revise their recommendations based on new information, the EEOC noted, so employers may want to periodically check agency websites for new information.

The ADA prohibits medical examinations unless they are job-related and consistent with business necessity. The EEOC clarified that employers that follow CDC guidelines while administering COVID-19 tests won’t run afoul of the ADA’s standard.

Employers should note that certain COVID-19-related inquiries are allowed based on the potential existence of a “direct threat” to the workforce. The EEOC previously confirmed that employers can chose to administer COVID-19 testing to employees before initially allowing them to enter the workplace. The agency clarified that employers can also periodically test workers who come into contact with co-workers, customers and other members of the public to determine if they pose a direct threat. But employers can’t ask teleworking employees—who are not interacting with others—about COVID-19 testing. Employers also shouldn’t ask whether employees’ family members have COVID-19 or related symptoms.

The EEOC also updated its guidance explaining when employers may invite employees, in advance of their expected return-to-work date, to disclose whether they need a reasonable accommodation.