EEOC Updates COVID-19 FAQs to Clarify Allowable Forms of Illness Tests in the Workplace
The EEOC has expanded on its COVID-19 workplace guidance in the form of two new questions targeted specifically at clarification regarding which types of workplace COVID-19 testing is allowable under the law. Previously, what was considered permissible workplace health exams was left a little nebulous, as ADA guidelines only specified that such exams needed to be “job-related and consistent with business necessity.”
New rules have made clear that anti-body testing (using anti-body test results to determine the presence or absence of COVID-19 in an employee) are categorically prohibited from being used to bar an employee from the workplace. The guidance states that this type of test is neither job-related nor consistent with business necessity and should not be used. It is likely that other forms of genetic testing will be similarly outlawed in the future.
Unfortunately, unlike the certainty with which the EEOC states which form of testing is not allowed, the Commission is far less specific when determining what type of medical examinations are permissible. Aside from ensuring such tests are accurate, the guidance only highlights the importance of following FDA/CDC guidelines on testing. The guidance ends by re-iterating the importance of social distancing and frequent handwashing.
Any employers using antibody tests must immediately switch to an EEOC-approved form of testing and ensure that such methods are replaced with approved ones. Standard temperature tests and symptom-monitoring procedures have not been scrutinized under this updated guidance and may continue to be used, so long as the tests are administered evenly and with clear, federally-approved criteria.