Employers must meet the ‘business necessity’ requirement to request an employee’s Covid-19 test

Employers must meet the “business necessity” criteria for screening employees who are or have been in the workplace for Covid-19, according to newly revised federal guidance.

Updated the Equal Opportunity Employment Commission’s guidance on COVID-19 to clarify that employers should evaluate the current outbreak and individual workplace conditions to prevent the spread of the virus.

The updated guidance primarily addresses issues related to disability-related questions and medical tests — a test for the COVID-19 virus is considered a medical test — in conjunction with the Americans with Disabilities Act and the Rehabilitation Act.

The information has been added to the EEOC Technical Assistance Questions and Answers document, “What You Need to Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws.”

The Commission acknowledges that “emerging epidemic conditions require individual evaluation by employers to determine whether this test is warranted in accordance with ADA requirements.”

Previous guidance stated that on-site testing for Covid-19 is legal in most cases. The revised guidance states that an employer may provide a Covid-19 test when evaluating an employee’s on-site presence at work only if the employer can demonstrate that the test is work-related and consistent with business necessity.

The level of business importance may be related to levels of community transmission, employee vaccination status, accuracy and processing speed of various covid-19 tests, transmissibility and current severity of covid-19 illness, and the likelihood of employee infections. To date” about the potential effects of vaccines and workplace operations.

Employers should check the latest Centers for Disease Control and Prevention to determine whether screening is appropriate, the agency advised.

The EEOC also clarified that employers may not conduct antibody testing—also considered medical testing under the ADA—before allowing employees to enter the workplace. The commission previously relied on CDC guidelines for employee antibody testing in 2020.

The CDC said in February that antibody testing should not be used to determine whether a worker can enter the workplace because it “may not indicate whether the worker has a current infection or ensure that the worker is protected against infection.”

Based on the CDC’s guidance, the EEOC said antibody testing does not meet the ADA’s business necessity requirement.

The EEOC’s “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” webpage provides strategies employers can use to navigate the impact of COVID-19 in the workplace.