On July 12, the EEOC updated its technical assistance guidelines regarding COVID-19 testing and vaccines in the workplace. In doing so, the EEOC moved from its position that COVID-19 viral testing at all levels for on-site employees met the ADA standard for performing medical examinations. It also clarified the responsibilities of employers regarding vaccines. Significantly, the EEOC “now makes it clear that going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances warrant viral testing of employees to prevent transmission of the virus. COVID-19 in the workplace”. After this course correction by the EEOC, employers requiring COVID-19 testing will only be able to do so if the requirement is “job-related and consistent with business necessity.” Which, in some situations, is no small feat.
This article summarizes some key points from the updated EEOC guidelines:
- The ADA allows an employer to require confirmation from a qualified medical professional that an employee is safe to return to work after being discharged with COVID-19. This investigation, although related to disability, meets the standard of “business necessity” as it relates to the “possibility of transmission and/or an employer’s objective concerns about the employee’s ability to resume work “.
- An employer may administer a COVID-19 virus test when evaluating an employee’s initial or continued attendance at work if they can show that the test is “job-related and consistent with the need for the job. company”. The viral test meets the standard of “commercial necessity” when it meets current guidelines from the CDC, FDA, and/or local/state public health authorities. The EEOC has recommended that employers monitor the above guidelines for any relevant updates.
- In addition to referencing the above guidelines when evaluating the “business necessity” standard, the EEOC has listed the following other possible considerations that the “business necessity” standard may include:
- the level of community transmission;
- the vaccination status of employees;
- the accuracy and speed of processing different types of COVID-19 virus tests;
- the extent to which breakthrough infections are possible for employees who are up to date with their vaccinations;
- the ease of transmissibility of the current variant(s);
- possible disease severity of the current variant;
- the types of contact that employees have with each other in the workplace or wherever they are required to work; and
- the potential impact on operations if an employee enters the workplace with COVID-19.
- Employers cannot require antibody tests before allowing employees to return to the workplace. CDC guidelines currently state that antibody tests may not show whether an employee has a current infection or is immune to infection. Therefore, these tests do not meet the ADA’s “business necessity” standard for medical examinations or employee inquiries. The EEOC pointed out that an antibody test is different from a viral test – discussed above.
COVID-19 test in the hiring process
- An employer can screen for symptoms of COVID-19 after a conditional job offer if they do so for all incoming employees in the same type of job. Additionally, if the employer screens everyone (e.g., employees, contractors, visitors) before allowing entry to the workplace, a pre-offer candidate who must be onsite during the interview process may also be checked for COVID-19.
- The EEOC also addressed an employer’s options when an otherwise successful candidate tests positive for COVID-19. The EEOC noted that some people may only need a relatively short period of isolation or quarantine. In these circumstances, employers can explore a new start date or allow remote work – if the work can be done remotely. Alternatively, an employer may withdraw a job offer from a candidate who tests positive for COVID-19 if they comply with current CDC guidelines and under the following circumstances:
- the job requires an immediate start date;
- the applicant should not be near other people; and
- the job requires such closeness to others, whether in the workplace or elsewhere.
- An employer cannot postpone the start date or withdraw a job offer because they are concerned that the candidate is older, pregnant, or has an underlying medical condition that could put the candidate at increased risk for his health. An employer’s concern for the well-being of an applicant does not excuse an action that otherwise constitutes unlawful discrimination.
Masks, PPE and direct threats to security
- In most situations, an employer can require their employees to wear personal protective equipment (eg, masks, gloves) and observe other infection control practices (eg, regular hand washing, physical distancing protocols ). Employers may also be required to comply with certain OSHA regulations. The EEOC pointed out that “OSHA regulations do not prohibit the use of reasonable accommodations under [equal employment opportunity laws] as long as such accommodations do not violate OSHA requirements. However, where an employee requires reasonable accommodation under the ADA or religious accommodation under Title VII, the employer must engage in the interactive process to determine whether reasonable accommodation is warranted. .
- Generally, the ADA does not allow the employer to take adverse action against an employee because the employee has a “disability,” including medical conditions identified by the CDC as potentially exposing the employee to a risque plus élevé de maladie grave si l’employé devait contracter COVID-19[FEMININELaseuleexceptionestsile«handicap»del’employéconstitueune«menacedirecte»pourlasantéoulasécuritédel’employéoud’autrespersonnesquinepeutêtresuppriméeouréduiteparunaménagementraisonnableL’évaluationdelamenacedirectenepeutpasêtrebaséeuniquementsurlehandicapidentifiéparleCDCcommeunhandicapquiexposepotentiellementl’employéàunrisqueplusélevépourlasantéLadéterminationdoitêtreindividualiséeetfondéesurunjugementmédicalraisonnableconcernantl’invaliditédel’employé–etnonsurl’invaliditéengénéralLesdirectivesdel’EEOCcomprennentunediscussiondétailléedel’évaluationdela«menacedirecte»andincludeexamplesofreasonableaccommodationsthatcaneliminateorreducea”directthreat»-intheabsenceofexcessiveconstraint[FEMININELaseuleexceptionestsile« handicap »del’employéconstitueune« menacedirecte »pourlasantéoulasécuritédel’employéoud’autrespersonnesquinepeutêtresuppriméeouréduiteparunaménagementraisonnableL’évaluationdelamenacedirectenepeutpasêtrebaséeuniquementsurlehandicapidentifiéparleCDCcommeunhandicapquiexposepotentiellementl’employéàunrisqueplusélevépourlasantéLadéterminationdoitêtreindividualiséeetfondéesurunjugementmédicalraisonnableconcernantl’invaliditédel’employé–etnonsurl’invaliditéengénéralLesdirectivesdel’EEOCcomprennentunediscussiondétailléedel’évaluationdela« menacedirecte »etincluentdesexemplesd’aménagementsraisonnablesquipeuventéliminerouréduireune« menacedirecte »-enl’absencedecontrainteexcessive
- If the employer requires a COVID-19 vaccine, they may require documentation or other information confirming the employee’s current vaccination status. Additionally, employers may require a COVID-19 vaccination for all employees subject to reasonable accommodations appropriate to religion and disability. The EEOC discussed when an employer can require an employee to comply with a COVID-19 vaccination mandate despite seeking reasonable accommodation.
- A vaccination mandate can trigger claims that it has a “disparate impact” on (or disproportionately excludes) employees based on their protected group status (e.g. race, color, religion, gender, age, origin national).
- An employer may share an employee’s medical information with certain employees who need it to perform their job. They must, in turn, keep this information confidential. The EEOC has provided several examples of employees who may have access to an employee’s vaccination status or COVID-19 test results. For example, a security guard responsible for only allowing entry into the workplace to employees who comply with workplace guidelines (e.g., vaccinations, testing, or masking) should only be given a list people who may or may not enter. This employee cannot receive medical information revealing why the employee is or is not on the list.
The EEOC emphasized that its change in position is not intended to suggest whether COVID-19 testing is warranted. Instead, the EEOC recognizes that changing pandemic circumstances now necessitate an individualized evaluation to determine if these tests meet the ADA standard for conducting medical examinations.
As the total number of reported COVID-19 cases (again) is on the rise, we anticipate that employers still performing COVID-19 testing may stumble along the way as they attempt to conduct the individualized assessments below. above. To ensure compliance with these latest EEOC guidelines, employers should review their current COVID-19 testing, safety, and vaccination protocols and adjust them accordingly as the COVID-19 pandemic continues to fluctuate.