The EEOC’s update trends medical-testing guidance back toward pre-pandemic norms

Pre-pandemic (if you can remember that long ago), were you ever required to check your temperature, upload proof of vaccination to a mobile app, or test for a virus just to attend an in-person work event? Probably not.

According to the employment attorneys interviewed for this piece, that’s because the scope of workplace medical examinations has historically been very narrow—justified if employers can prove testing is “job-related and consistent with business necessity.”

Like most things, this changed at the onset of the pandemic. Mark Kluger, partner at Kluger Healey, said the number of Covid cases, speed of community spread, and lack of available vaccines gave employers the “green light” to test employees for Covid-19. It was “implicit,” Kluger explained, that in every industry, testing was a business necessity.

Last month, the EEOC updated its guidance on workplace Covid-19 testing, reverting the standard from an automatic “yes” back to a qualified “maybe.”

Some factors determining whether or not it’s necessary, according to the agency, include rates of community spread, employees’ vaccination status, the likelihood of breakthrough infections, and transmissibility and severity of current variants, as well as the type of contact employees have with coworkers and the public.

Each expert interviewed for this piece stressed that the prior Covid-19 testing policy was unusual and adopted to meet the emergency at hand. Evandro Gigante, partner at Proskauer Rose, said last month’s update marks a bit of a return to pre-pandemic employment law normalcy.

“It’s [now] not automatically the case that an employer can conduct testing in any circumstance at any time just because we are in the midst of a pandemic,” Gigante said.

Not so fast. Just because the agency has reinstated more scrutiny doesn’t mean testing will stop. Though the policy, on paper, may seem to be business-as-usual, Devjani Mishra, leader of Littler Mendelson’s Covid-19 task force and return-to-work team, points out that the circumstances are still anything but normal.

“They say, ‘Well, look at CDC guidance,’ and the CDC guidance is essentially bright red. You go through the different factors: [Is there] transmission? Yes. Is it possible for people to get breakthrough infections? Yes. Will [there be] potentially severe infections? Yes, we know that hospitalizations are up in many, many places,” Mishra said.

If anything, she said, CDC guidance suggests a need for more testing, particularly at companies without “slack in the system” to provide coverage for workers taking time off due to Covid. She sees the EEOC update as guidance for the future when conditions are less severe.

But when to say “when”? The criteria, Kluger said, don’t outline clear thresholds for how much community transmission or how severe a variant must be to warrant continued testing. If a highly severe variant has a low transmission rate, but workers are frequently interacting with each other and the public, then what?

Kluger said he has “no idea.” The ambiguity around thresholds, Kluger said, leaves employers to make “judgment calls” about whether conditions warrant employee testing.

Mishra said some clients read the EEOC’s announcement and were initially worried about increased legal risk. However, she said most feel that testing currently holds up, no matter what threshold you use.

“I think an employee would have to work really hard to identify the analysis that allows them to say, ‘Oh, no, transmission is not really bad right now’ or ‘Breakthrough infections don’t exist,’” she said.

Mishra said employees may be able to “get there” somewhere down the line—she noted that the guidance could have been designed to empower workers to push back on policies that were “put in place then forgotten about”—but even then, she suspects most testing policies won’t end in complaints. In her opinion, most companies will be on the lookout for a testing “off-ramp” as soon as it’s safe.

“Testing is expensive. It’s burdensome. It’s time-consuming,” Mishra said. “There aren’t that many employers out there that really want to do more testing than they have to do.”

Whether employers are looking to justify or reduce testing, one thing is clear: The days of the CHRO doubling as the chief Covid officer are far from over.

“HR departments are gonna have to continue to have their finger on the pulse,” Kluger said.—SV

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