EEOC Issued New Guidance on Employer Mandatory COVID-19 Testing Policies

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance, What
You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, which
impacted several long-standing COVID-19-related policies. The most significant policy change in the
latest guidance was related to employer mandatory COVID-19 testing. The updated guidance is not likely
to significantly impact EMS employer testing practices for field personnel, but could for those who work
in administrative or non-patient facing roles.

In the latest guidance, the EEOC changed its previous position that employers could generally require
COVID-19 testing for most employees. The EEOC had previously taken the position that it believed that
COVID-19 viral testing was per se, job-related and consistent with business necessity, regardless of the
employer type. Under the latest guidance, the EEOC is now stating that employers will need to more
closely analyze whether viral testing is job-related and consistent with business necessities. In doing so,
employers should utilize any of these factors:

 The Center for Disease Control (CDC) level of community transmission.
 The vaccination status of employees.
 The degree of breakthrough infections are possible for vaccinated workers.
 The transmissibility of current variants.
 The possible severity of illness from a current variant.

In most instances, EMS employers who require COVID-19 viral testing for field employees for ongoing,
symptomatic, or return to work reasons, are likely to meet the job related and consistent with business
necessity requirement. However, for those employees who are in non-patient-facing roles, it will be far
more difficult to justify mandatory COVID-19 testing and employers should reconsider their position on
mandatory testing.

The guidance also included updates to clarify the timeline factors to consider when handling reasonable
accommodation exceptions for vaccinations and how there could be a reasonable pandemic-related
delay. However, they acknowledged that this is likely less impactful at this point in the pandemic.
Additionally, the guidance highlighted that employers are not under an obligation to engage an
employee who has a serious health condition if the employee has not requested an accommodation
from vaccination.

Many EMS employers are currently required to mandate COVID-19 vaccinations for employees who may
enter or interact with the patients or staff of a covered healthcare facility unless they have a covered
religious or disability-related exemption. After nearly two years of the pandemic and the availability of
COVID-19 vaccinations, those employees who wish to be vaccinated would have done so by now. Those
who remain unvaccinated are doing so by choice.

If you have any questions or concerns regarding the updated guidance or any COVID-19 related
workplace practice, be sure to contact the American Ambulance Association for assistance at
hello@ambulance.org.