EEOC substantially revises key components of COVID-19 guidance

The Equal Employment Opportunity Commission (EEOC) issued technical assistance guidance to provide answers to questions that frequently arise in the workplace during a pandemic beginning in March 2020. Since that time, the agency has periodically updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance (https://bit.ly/3zrzQOC) in response to new and emerging legal issues.

Major changes involve testing

Mandatory viral testing must meet the business necessity standard. TheEEOC had previously permitted employers to mandate COVID-19 viral testing as a screening measure, without requiring any additional showing. Due to changes in the pandemic, the agency will now apply its prepandemic Americans with Disabilities Act (ADA) standard that viral testing be job-related and consistent with business necessity. Employer-mandated viral testing will meet the “business necessity” standard, according to the revised guidance, so long as it is consistent with guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), or state and local public health authorities current at the time of testing.