Time to revisit and update your COVID-19 policies

During July 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance. The new standards set forth important updates and clarifications regarding COVID-19 testing, vaccine mandates, and disability and religious accommodations in the workplace. Employers should familiarize themselves with the new guidance and, if necessary, update their existing COVID-19 policies.

Testing in the workplace

The EEOC’s prior guidance stated that conducting mandatory COVID-19 testing in the workplace alwaysmet the Americans with Disabilities Act (ADA) standard of being “job-related and consistent with business necessity.” The updated guidance now calls for a more nuanced assessment of community risk, stating that employers should perform individualized assessments to determine whether testing an employee is job related and consistent with business necessity.

The business necessity standard is met only when testing is consistent with current guidance from the Centers for Disease Control and Prevention (CDC), U.S. Food and Drug Administration (FDA), and other state or local public health authorities. Accordingly, employers should stay up to speed on changes and developments from these federal and state agencies.

The EEOC guidance lists the following “possible considerations” employers should keep in mind when determining if testing is a business necessity: