EEOC Limits Permissible Workplace COVID Testing In Its Most Recent Guidance

As infections during the worldwide COVID pandemic have waxed and waned, and as vaccinations and new treatments for COVID infection have been introduced, employers have begun to see a substantial increase in the number of employees that have returned to work. That, in turn, has caused many employers to re-evaluate their COVID testing protocols to determine who may return to the office and when.

Earlier in the pandemic, the EEOC permitted such testing of on-site employees without any need for an employer to show a particular need for testing or any obvious workplace threat. Employers were free to require employees to test as frequently as they wished in an effort to create a workplace that was free from COVID infection and could do so without running afoul of the Americans With Disabilities Act's restrictions upon medical examinations of employees. At the time, the EEOC permitted employers greater deference given the uncertainties associated with the ongoing pandemic.