Latest Workplace COVID-19 Testing Rules

As employers navigate the post-lockdown pandemic world, some have continued to test workers for COVID-19. However, an update from the Equal Employment Opportunity Commission (EEOC) on July 12, 2022, indicates employers should review their policies to ensure they comply with updated guidelines.

Due to the previous heightened state of urgency with the pandemic, the EEOC largely permitted employers to test workers for COVID-19 without creating compliance difficulties with the Americans with Disabilities Act (ADA). In the revised guidelines, however, the agency now says that an employer can administer viral tests as a condition of entering a worksite, so long as an employer can show the testing practices are job-related and consistent with business necessity. This update creates a need for employers to assess whether current pandemic conditions and individual workplace circumstances substantiate viral testing of employees to prevent workplace COVID-19.
 

Key Points to Remember: 

1. Antibody tests are still not permitted as a condition of reentering the workplace

2. COVID-19 screening questionnaires are still allowed
Employers are still permitted to ask all employees who are physically working on site if they have existing COVID-19 symptoms, have been diagnosed with or tested positive for COVID-19. However, recent guidance states employers generally cannot screen employees who work remotely or otherwise do not have in-person contact with co-workers, customers, or other business partners.

3. You may require ‘return-to-work’ confirmation from a medical professional
If employees miss work because they tested positive for COVID-19, employers are allowed under the ADA to require employees to provide a note from a qualified medical professional confirming that they may safely return to the worksite and are able to perform their job duties.

4. Employers may screen job applicants for COVID-19 symptoms
There are no changes under the new EEOC guidance to screening job applicants before they start work. Screening should be consistently applied and only after making a conditional job offer. Additionally, employers have the opportunity to screen job applicants who come onsite as part of the interview process if the company screens everyone who enters the worksite, such as employees, contractors, and visitors.

5. If you have a candidate who tests positive for, has symptoms of, or has recently been exposed to COVID-19, potential employers should cautiously consider before withdrawing a job offer.
The EEOC has stated employers may withdraw a job offer if:
• The job requires an immediate start date
• The CDC guidance recommends the person not be in proximity to others
• The job requires such proximity to others, whether at the workplace or elsewhere

It’s important to acknowledge that guidance from the EEOC, Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and state and local public health authorities continue to evolve based on new information and changing conditions. Employers should be prepared to review and revise their protocols, policies and guidelines regularly.

LandrumHR will continue to monitor all guidelines and provide updates as appropriate.