I went ahead and redlined the changes for you. But the EEOC wants to call your attention specifically to the updated circumstances under which employers may test employers for COVID-19 at work:
EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing...[G]oing forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. [The EEOC] offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace.
Does this mean employers can’t (or shouldn’t) test for COVID-19? No. But employers should individually assess whether current conditions warrant testing consistent with the requirements of the ADA.
The ADA “business necessity” standard requires employers to utilize the most current medical and public health information to determine appropriate inquiries/medical examinations. As I type this, COVID-19 community transmission levels are generally high, and COVID-19 community levels vary.
Notwithstanding, the ADA would not prevent employers under any circumstances from:
- asking employees if they have any COVID-19 symptoms,
- requiring employees to furnish a negative test as a condition of returning to work after testing positive, or
- otherwise following CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.