Throughout the COVID pandemic, California employers have had broad discretion to mandate employee COVID tests. Employers were empowered with such discretion by the Equal Employment Opportunity Commission (“EEOC”). Generally, medical tests or examinations mandated by employers must be “job related and consistent with business necessity” as defined by the Americans with Disabilities Act (“ADA”).
Until recently, the threat of COVID in the workplace satisfied the ADA requirements. However, on July 12, 2022, the EEOC announced updated guidelines for COVID testing and stated that requiring testing for employees must now satisfy the business necessity test. The EEOC stated that COVID testing will be considered a business necessity if it is done in accordance with the current guidance from the Center for Disease Control (“CDC”) and the Food and Drug Administration (“FDA”) as well as state and local public health authorities.
Specifically, the EEOC explained that the business necessity requirement is met if the CDC, FDA, or state and local authorities recommend COVID testing or if an employee is exhibiting symptoms consistent with COVID in the workplace. Further, the EEOC noted that the likelihood of infection or transmission may also be considered. The following factors are to be considered in determining the likelihood of infection or transmission:
- Level of community transmission;
- Vaccination status of employees;
- Accuracy and speed of processing various types of COVID tests;
- Degree of breakthrough infections among vaccinated employees;
- Ease of transmissibility of the current variant;
- Possible severity of illness from the current variant;
- Level of contact employees have with others in the course of work; and
- Potential impact on operations if an infected employee enters the workplace.
The EEOC explained that these updated guidelines apply only to viral testing for COVID and that employers are no longer able to mandate antibody tests because such tests do not show if an employee is currently infected.
Employers are still allowed to ask screening questions to employees regarding COVID, such as asking if an employee is exhibiting COVID symptoms or if an employee has been tested. Employers who currently have a mandatory COVID testing policy should consider revising that policy in accordance with the EEOC guidelines. All employers should regularly check the CDC, FDA, and local and state health authority guidance if concerned about COVID in the workplace or if considering asking employees to test.