On Tuesday, the federal Equal Employment Opportunity Commission (EEOC), without a lot of fanfare, revised its ongoing Covid “Guidance” Document to announce a fundamental shift in position with respect to employers who may still be requiring testing in responding to employees, or applicant for employment. If Covid testing continues as part of your internal HR policies, you should continue reading.

As part of the Americans with Disabilities Act (ADA), federal law placed significant restrictions on whether/when an employer may lawfully require an applicant or employee to require a medical examination as a condition of employment. Start with that premise and add to it the fact that the EEOC considers Covid testing to be a “medical examination.” That leads to the principle that an employer could not normally require Covid testing without being able to demonstrate a palpable “business necessity” for doing so.

However, with all the uncertainty and the emergent nature of the onset of the pandemic, governments formally declared an emergency situation – and the EEOC, thus, took the position that:

“Testing administered by employers consistent with current CDC guidance will meet the ADA's “business necessity” standard.” That is, the EEOC was assuming that, if an employer wanted to require Covid testing for its applicants or employees, there was automatically a valid reason for doing so – no questions asked.

But, lately, these “declarations of emergency” have, in large part, been allowed to lapse. The change just announced by the EEOC was a subtle but significant one. With there being no more emergency formally declared, no more assumptions like that would be made on their end. Now, if an employer’s Covid testing policy should be challenged by an applicant or employee, that employer would be legally required to come forward and demonstrate that there actually is a continuing business necessity for it.

To do that, the Commission is suggesting an employer evaluate: (1) the level of community transmission, (2) the vaccination status of employees, (3) the accuracy and speed of processing for different types of COVID-19 viral tests, (4) the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, (5) the ease of transmissibility of the current variant(s), (6) the possible severity of illness from the current variant, (7) 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 (8) the potential impact on operations if an employee enters the workplace with COVID-19. To the extent that an employer’s testing program is consistent with guidance from Centers for Disease Control and Prevention, the Food and Drug Administration, and/or state/local public health authorities that is current at the time of testing, an employer will likely be safe on this issue – to the extent an employer’s program varies from or exceeds those recommendations, the employer would need to argue from those 8 listed criteria why its testing requirement is a business necessity.

So, at the end of the day, if an employer is continuing to require Covid testing under any circumstances, now would be a good time to re-examine that policy and assess whether it continues to be justifiable under these standards (an evaluation you probably didn’t make previously because, under the EEOC’s rules up until this week, it wasn’t necessary).