On July 12th, 2022, the U.S. Equal Employment Opportunity Commission updated its COVID-19 guidance.

Here are the redlined changes provided by attorney Eric B Meyer of FisherBroyles LLP.   But the EEOC wants you to pay close attention to the updated circumstances under which employers may test employers for COVID-19 at work:

EEOC is updating a number of Q&As on July 12, 2022, including A.6. EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. With the revision of A.6, below, on July 12, 2022, EEOC makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. A.6. offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace. This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.

• All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
• The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act. Note: Other federal laws, as well as state or local laws, may provide employees with additional protections.
• Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act. Basic background information about the ADA and the Rehabilitation Act is available on EEOC’s disability page.
• The EEO laws, including Title I of the ADA and the Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following current guidance and suggestions made by CDC or state/local public health authorities about steps employers should take regarding COVID-19. 

Does this mean employers can no longer test for COVID-19? No. However, the ADA “business necessity” standard requires employers to consider the most current medical and public health information to determine if testing is appropriate at the time.

The ADA would not prevent employers under any circumstances from:

• asking employees if they have any COVID-19 symptoms,
• requiring employees to furnish a negative test as a condition of returning to work after testing positive, or
• otherwise following CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.