If you've been regularly testing your employees for Covid over the past two plus years, you have done so under the guidance from the Equal Employment Opportunity Commission (EEOC). The EEOC updated their frequently asked questions about workplace Covid testing on July 12. There are some subtle, but significant, changes you need to consider --which may result in reducing or eliminating testing in some situations. It could also lead to increasing testing in others.
"Job-related and consistent with business necessity."
This is the consistent language the EEOC uses whenever they talk about medical testing or requirements under the Americans with Disabilities Act. To justify testing your employees for Covid, it needed to be "job-related and consistent with business necessity."
That part hasn't changed. But how a business should interpret that has. According to law firm Littler's Workplace Policy Institute, Covid screening tests "for employees entering the workplace is not per se or presumed permissible. Rather, an employer must demonstrate that such a test is necessary for the safety of the workplace and consistent with the job in question."
Previously the assumption of what "job-related and consistent with business necessity" meant was that if you had humans who worked with other humans, you could justify Covid testing.
The EEOC is asking for specific job-related evaluations before you require testing. The EEOC suggests that your assessment of "business necessity" includes:
- level of community transmission
- vaccinations status of employees
- accuracy and speed of different types of test
- the breakthrough rate for vaccinated employees
- the transmission rate for the current variant
- the possibility of severe illness
- if your employees work with medically vulnerable individuals
- potential impact on operations.
If you look at all these things and determine that there isn't a business necessity, it may be time to stop testing your employees.
Time to look at your old policy.
If you haven't updated your Covid testing and vaccination policy in the past few months, it's time to look at them again. Employment attorney and partner at Shipman & Goodwin LLP, Daniel Schwartz, explained that while there is this new guidance, it's not perfectly clear:
Employers are struggling with what to do about vaccinations and testing, and the new guidance didn't necessarily clarify a good path forward. It suggests that employers need to factor in business necessity for testing, but given that there is still a public health emergency, it fails to explain why.
At the very least, employers need to review their practices to ensure they're not just doing testing because it was OK in the past.
You want to keep your employees and customers safe, and you want to comply with the EEOC guidelines. At a minimum, you need to address your current policies.
The CDC last updated their non-health care workplace testing guidelines in October 2021, so if you've based your policies on those guidelines, you're off to a good start. The CDC recommends testing for employees in many situations, but the three most important ones for you to consider in your policy are:
- People with a known exposure.
- People with symptoms.
- People in workplaces where transmission is likely or likely to cause devastating effects on the business.
The EEOC's new guidance is very consistent with the CDC. Look at your policies and practices and determine if you need to continue testing or if you don't have a valid business necessity for regular testing.