While many now refer to the COVID-19 pandemic as a thing of the past, it is anything but gone. At the time this post was drafted, positive COVID cases in California are averaging 20,000 per day, face masks are still prevalent, and as the EEOC reminds us, regulations are still changing to update new realities.

On July 12, the EEOC updated its guidelines with respect to mandatory screening procedures. At the outset of the pandemic, and until now, the agency viewed the Americans with Disabilities Act (“ADA”) standard for conducting medical examinations as having always been met with respect to COVID-19 viral testing. Now, according to the EEOC, a COVID-19 viral test may be required as a mandatory screening measure “if the employer can show it is job-related and consistent with business necessity.”

The EEOC guidance requires employers to look at their own individual facts and circumstances. Among the factors the EEOC asks employers to consider are “the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for 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 contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.” Of course, these are only two government agencies with their hands in the cookie jar, and it is important to check in on any CalOSHA guidelines, other regulatory agencies with authority over your industry, and any local regulations, to ensure you are in line with current practices.

This actually brings the EEOC guidance in line with California. The Department of Fair Employment and Housing guidance has long since couched mandatory testing in the need to establish that it is “job-related and consistent with business necessity.” Specifically, the DFEH guidance provides that “Employers may require that employees submit to viral testing in order to determine whether an employee has COVID-19 infection, before allowing an employee to enter the workplace. That is because an employee with COVID-19 is unable to perform the employee’s essential duties in a manner that would not endanger the health or safety of others in the workplace even with reasonable accommodation there.”

So is it safe to allow employees in the worksite without testing? So long as the employee can perform their duties without endangering others, the answer is yes. But whether employees can actually do that requires a more careful analysis, and regular attention to environmental circumstances such as current rates of COVID-19 transmission, employee vaccination rates, and the severity of illness from current (and potentially future) COVID variants.

As always, confer with experienced counsel before implementing mandatory screening measures to ensure that they comply with the ever-changing guidelines and regulations.