Given the easing of the pandemic, the US Equal Employment Opportunity Commission (EEOC) has once again updated its guidelines relating to employers’ handling of COVID-19. These adjustments reflect the evolving nature of the pandemic and serve as a reminder that what was appropriate in 2020 and 2021 may no longer be the case.
Most recently, the EEOC adjusted its guidance for on-site COVID testing of employees, requiring employers to engage in individualized assessments to ascertain whether testing is warranted. The Americans with Disabilities Act (ADA) considers COVID tests a medical examination.
This new guidance contrasts with the EEOC’s prior directives that mandatory COVID viral screening testing for those employees was lawful. In its modification, the EEOC has determined that mandatory COVID testing for on-site employees may only occur if the employer can show it is job-related and consistent with “business necessity.” The test will be considered a “business necessity” when it is consistent with guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that are current at the time of testing.
The EEOC has listed other potential considerations in making the “business necessity” assessment, including:
- 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 in other settings where they are required to work, and
- the potential impact on operations if an employee enters the workplace with COVID-19.
In addition, employers may not require antibody testing before permitting an employee to re-enter the workplace. The CDC has explained that antibody tests may not establish whether an employee has a current infection. Accordingly, an antibody test should not be used to determine if a worker may enter the workplace, and such testing does not meet the aforementioned business necessity standard.
Among the other updates worthy of highlighting:
- Employers may require employees to provide a doctor’s note clearing them to return to work after being absent due to COVID-19. Alternatively, employers may follow CDC guidance to determine whether it is safe to let the employee return.
- Employers may screen job applicants for COVID-19 after making a conditional job offer, so long as it does so for all entering employees for the same type of job. If an employer’s practice is to screen everyone before allowing entry to the workplace, applicants in the pre-offer stage may also be subject to the same screening.
- Employers may only withdraw a job offer if (i) the job requires an immediate start date, (ii) CDC guidance recommends the person not be in proximity to others, and (iii) the job requires such proximity to others, whether at the workplace or elsewhere. However, employers may not postpone a start date or withdraw a job offer merely because they are concerned for said employee’s well-being as a member of a high-risk group.
- While COVID-19 vaccination medical information is confidential, employers may share said information (such as confirmation of employee vaccinations or COVID-19 test results) with employees who need it to perform their job duties, as long as those employees keep the information confidential. To illustrate what this may look like, the EEOC included several potential scenarios where sharing such information is appropriate for employers to analyze.
In light of the recent EEOC updates, employers should assess their current COVID-19 practices to ensure compliance with relevant laws and regulations. Obermayer’s Labor and Employment attorneys continue to monitor changes to COVID-19 guidance and workplace regulations and remain prepared to address questions and provide assistance with any COVID policies.