Early in the onset of the COVID-19 pandemic the Equal Employment Opportunity Commission (EEOC) issued guidance clearing the way for all employers to mandate COVID-19 viral testing for all employees without the need for any individualized justification or assessment. The health risks posed by the virus at that time prompted the agency to conclude that the health emergency trumped the Americans with Disabilities Act\u2019s prohibition against medical testing that was not \u201cjob related and consistent with business necessity.\u201d<\/p>\n
The Heightened \u201cjob Related and Consistent with Business Necessity\u201d Requirement.<\/strong> \u00a0 In a hopeful sign that the COVID-19 pandemic may be waning, on July 12, 2022, the EEOC revised its mandatory testing guidance to now require employers to assess whether current pandemic circumstances and individual workplace circumstances justify COVID 19 testing of employees to prevent workplace transmission. The EEOC cautioned that the reinstitution of the \u201cjob related and consistent with business necessity\u201d standard \u201cis not meant to suggest that such testing is or is not warranted; rather, the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted.\u201d<\/p>\n The updated guidance lists the following possible factors that an employer may want to consider during the assessment to satisfy the heightened standard:<\/p>\n