Maxine Neuhauser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Newark office, was quoted in Law360 Employment Authority, in “New EEOC Guidance Complicates Virus Testing Landscape,” by Anne Cullen. (Read the full version – subscription required.)

Following is an excerpt:

Guidance the U.S. Equal Employment Opportunity Commission issued last week rolling back a blanket clearance for businesses to test employees for COVID-19 muddies the legal waters around this safety protocol, experts said.

In a revision to earlier guidance that said mandatory virus testing was automatically justified by the pandemic, the EEOC told employers in a July 12 update that it's now up to them to make their case to conduct this kind of screening. Unless it's "job-related" and a "business necessity," viral testing of employees could run afoul of the Americans with Disabilities Act, the agency said. Employment lawyers said the update saddles businesses with another pandemic-related administrative burden, one for which the rules are hazy.

"I understand the reasoning behind the guidance, but in the circumstances, I think it is going to lead to less clarity, not more," said Epstein Becker Green member Maxine Neuhauser, who advises employers. "Employers like bright lines, and this guidance is not helpful that way."

The rescission of the default justification requires company leaders to make individual decisions on whether to test a worker for COVID-19, an endeavor experts said will be involved. …

For company leaders wondering if they meet the legal requirements for testing their workforce for COVID-19, here are five tips for making the call.

Follow the CDC's Lead

The EEOC repeatedly emphasized in its update that company leaders should lean on the most updated information from the Centers for Disease Control and Prevention to determine what safety protocols make sense in their facilities, like viral tests.

"The EEOC has certainly made the CDC king of the hill in terms of when testing may or may not be permitted," Epstein Becker's Neuhauser said. "Employers are constantly going to be needing to check the CDC."

"The decisions an employer makes today based on CDC guidance and information could change tomorrow," she said.

If an employer determines testing is justified based on CDC information, experts suggest that its record of the decision includes the date it pulled the agency recommendations, as that could change down the line.

"I would add that to the to-do list on how you manage and administer your testing requirements," Neuhauser said. …

Designate Decision Makers

Monitoring the fluctuating pandemic circumstances — especially the ever-changing transmission levels — and keeping company policies in line with them is a difficult task, experts said.

"You're going to have to check — is it high, is it medium, is it low?" said Epstein Becker's Neuhauser. "It's a little bit Goldilocks, without knowing which porridge is just right."

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