September 06, 2022

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its existing Questions and Answers (Q&As) technical assistance guide for employers titled “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws.” The EEOC updated a number of Q&As related to employer-mandated COVID-19 testing and vaccine scenarios. The latest updates reflect the EEOC’s revised position related to worksite COVID-19 viral screening testing. Moving forward employers will need to assess whether current circumstances of the COVID-19 pandemic and individual workplace circumstances justify screening testing of employees.

The updated Q&As in the technical guidance include:

• Medical note after a COVID-19 related absence: The updated guidance states that the Americans with Disabilities Act (ADA) permits an employer to require an employee to provide a medical note from a qualified medical professional prior to returning to work that explains it is safe for the employee to return to work and resume their job duties.
• Mandatory COVID-19 testing: The updated guidance states that it is not a violation of the ADA for an employer to require a mandatory COVID-19 viral screening test, as viral testing is considered a medical examination for ADA purposes. An employer must demonstrate that viral testing is job-related and consistent with business necessity, with the updated EEOC guidance including examples of factors to help employers make this determination (e.g., level of community transmission; vaccination status of employees; potential impact on business operations if an employee with COVID-19 enters the workplace).

Unlike viral testing, the updated EEOC guidance notes that requiring antibody testing is not permitted under the ADA. The EEOC refers to CDC guidance from July 2022 in explaining that antibody testing does not determine whether an employee has an infection or is immune to the COVID-19 virus, and thus antibody testing does not meet the ADA’s business necessity standard for medical examinations.

• Mandatory COVID-19 vaccinations: The EEOC states in the updated guidance that federal employment nondiscrimination laws do not prohibit an employer from requiring all employees to be vaccinated against COVID-19. However, employers are required to provide reasonable accommodations under Title VII, the ADA, and other EEO laws unless it would pose an undue hardship on the employer’s business operations.

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Policy & Advocacy Compliance COVID-19