EEOC Updates Guidance On Mandatory COVID-19 Testing By U.S. Employers

The U.S. Equal Employment Opportunity Commission (EEOC) recently released updated guidance addressing the impact of the Americans with Disabilities Act on mandatory COVID-19 testing of employees. In prior guidance, due to the severity of the pandemic, the EEOC had broadly allowed employers to test workers.

In the revised guidelines, however, the EEOC said that while employers can continue to administer COVID-19 tests as a condition of entering a worksite, they must show the testing practices are job-related and consistent with a “business necessity.”

When making a determination about “business necessity,” companies can consider factors like:

• The level of community transmission;
• The vaccination status of employees;
• The accuracy and speed of processing for different types of COVID-19 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 current variants;
• What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
• The impact on operations if an employee enters the workplace with COVID-19.

MSCI urges its member companies to review this guidance and update company policies accordingly.