In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:
- This is probably the most notable change contained in the update.
- Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is “job-related and consistent with business necessity.”
- Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or “state and local public health authorities.” Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
- As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.
Other interesting elements of the new Guidance provide that:
- Employers still cannot require antibody tests.
- Employers can screen applicants for symptoms of COVID-19, but they can only do so after making a bona fide conditional job offer and they must do so for all entering employees in the same type of job.
- Employers can require employees to be vaccinated against COVID-19 as long as the employer considers reasonable accommodations for employees with disabilities, pregnancy, or religious objections.
- Employers must be aware of the possibility that their vaccination mandates may have a disparate impact on employees in certain protected groups and conduct a disparate impact analysis.
- Employers can share an employee’s COVID-19 test results with employees who need the information in order to do their jobs, such as an administrative employee assigned to maintain records of vaccinations, an employee assigned to check vaccination status before allowing people to enter the building, or an employee who administers a COVID-19 testing requirement.
- There is no limit to the value of incentives an employer can offer to employees who get vaccinated, as long as the vaccines are administered by a third party (not an agent of the employer). If the employer or its agent administers the vaccines, the incentives “may not be so substantial as to be coercive.”
- Employers can require a doctor’s note before letting an employee return to work after a bout with COVID-19. In the alternative, employers can and rely on CDC guidance regarding when an employee should be allowed to return to the workplace.
- If a recently hired employee tests positive but is needed immediately, the employer can withdraw the offer, if (1) “CDC guidance recommends the person not be in proximity to others,” and (2) “the job requires proximity to others.” Even if these criteria are met, employers should consider reasonable accommodations, such as delaying the start date until the offeree recovers or letting the offeree work remotely.
- An employer cannot postpone the start date of an employee that does not have COVID-19 but who may be “vulnerable” because they are older, pregnant, suffer from a disability….
- If an employer is concerned that an employee may be more vulnerable to COVID-19, it must allow the employee stay in the workplace if the employee chooses to do so, unless there is a “direct threat”: an imminent risk of serious harm to the employee or to others.
- Similarly, employers may not keep older workers out of the workplace out of concern that they are more vulnerable to COVID-19.