By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

• The level of community transmission
• The vaccination status of employees
• The accuracy and speed of processing different types of COVID-19 viral tests
• The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
• The ease of transmissibility of the current variant(s)
• The possible severity of illness from the current variant
• What types of contact employees may have with others in the workplace or elsewhere that they are required to work
• The potential effect on operations of an employee enters the workplace with COVID-19

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