New Updates To EEOC Covid Workplace Policies
As of July 12, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers on COVID-19 testing and vaccine in the workplace.
Employers now need to show that mandatory COVID-19 testing of employees is job-related and consistent with business necessity, as defined by the ADA. In determining whether a mandatory testing measure meets business necessity, employers may consider the following:
- Community transmission levels
- The vaccination status of employees
- The accuracy and speed of processing different types of COVID-19 viral tests
- The degree to which breakthrough cases are possible for vaccinated employees
- The ease of transmissibility of current COVID-19 variants
- The possible severity of illness from current COVID-19 variants
- Types of contact employees may have with others in the workplace or where they are required to work
- Potential impacts on an employer’s operations if an employee enters the workplace with COVID-19
What are some of the changes to policies on COVID-19 testing and vaccines?
One major change is to A.6.The following common question was asked: “Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?”
Previously, the EEOC said the Americans with Disabilities Act (ADA) standard for conducting medical exams was always met for employers to do worksite COVID-19 viral screening testing.
But, Not so fast! The EEOC has changed its stance somewhat. Now, employers will need to assess if the current pandemic and individual workplace circumstances justify testing employees to prevent workplace transmission of COVID-19. It even offers things to consider when making this assessment like community transmission levels and the different types of contact between employees in the workplace.
This new guidance doesn’t mean this type of testing isn’t warranted. It’s a reaction due to the changing pandemic circumstances and places the individual assessment of if the testing is needed and consistent with the requirement of the ADA in the hands of employers.
Other key points to know:
- A.5. Employers are still allowed to require a note from a qualified medical professional stating the employee can safely return to work after being out with COVID-19. It’s allowed by the ADA even if the inquiry is disability-related because the ADA standard requires such inquiries to be job-related and consistent with business necessities. It meets the business necessity requirement because it’s related to the possibility of transmission and/or related to an employer’s objective concern about whether an employee can do aspects of their job, like physical exertion.
- A.7. Employers can no longer require antibody testing before allowing an employee to return to work. Reason: The Centers for Disease Control and Prevention (CDC) stated as of July 2022 that antibody testing may not show if an employee currently has COVID-19 nor prove the employee is immune to COVID-19. Therefore, it can’t be used to determine if an employee may return to the workplace. That also means it doesn’t meet the ADA’s “business necessity” standard for employee medical exams or injuries.
What about screening job applicants for COVID-19 and withdrawing an offer?
- C.1. Employers may still screen job applicants for symptoms of COVID-19, after making a conditional job offer, if they do it for all new employees in the same job type. And this is true even if the applicant has a disability. If an employer requires everyone – visitors, contractors, employees, etc. – who enter the workplace to be screened, it may screen applicants in the pre-offer stage who need to be in the workplace as part of the application process. If they ask additional questions that aren’t asked to everyone else who gets screened, that’s “an illegal pre-offer disability-related inquiry and/or medical examination.”
- C.4. If an individual tested positive for COVID-19, has symptoms of it or has been recently exposed, an employer can withdraw a job offer if it requires the job applicant to start immediately. However, the EEOC advised that the employer consult and follow current CDC guidance on when it’s safe for someone to end isolation and safely reenter the workplace. According to this guidance, an employer may withdraw a job offer if the person must start work immediately and be in proximity to others. The CDC recommends they not be. However, employers should also consider if the isolation or quarantine time is a short period to move out the start date or offer remote work when possible.
- C.5. An employer can’t postpone a start date or withdraw a job offer because it’s concerned the new employee is older, pregnant or has an underlying medical condition that puts them at increased risk from COVID-19. Even if the employer is trying to protect the person it doesn’t excuse unlawful discrimination action.
Remember ADA reasonable accommodations
- D.17. The pandemic may result in excusable delays during the interactive process of reasonable accommodations. While some of the pandemic-created issues may no longer exist, the pandemic continues to evolve and new issues may arise. So, it’s possible new challenges that interfere with responding expeditiously to a request for accommodations may crop up. Returning to the workplace may also cause numerous requests for accommodation which may justify a delay to an accommodation that an employee is legally entitled to.
- D.18. Despite federal agencies having timelines in their written reasonable accommodation procedures, situations created by the “current” pandemic may constitute an “extenuating circumstance” exceeding the normal timeline.