The Equal Employment Opportunity Commission (EEOC) released updated guidance for employers on several COVID-19-related issues, including when employees can be required to undergo testing for COVID-19, delays to the interactive process and mandatory vaccination programs.
The agency updated the Q&A guidance on July 12, emphasizing changes to the standard under the Americans with Disabilities Act (ADA) with regard to worksite COVID-19 testing.
At the outset of the pandemic, mandatory worksite COVID-19 testing was treated as meeting the ADA standard that it was “job related and consistent with business necessity.” Going forward, if an employer seeks to implement such testing for employees, it must meet the “business necessity” standard based on the relevant facts, the EEOC said.
Possible considerations may 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(s), what types of contact employees may have with others in the workplace or in other locations where they are required to work, and the potential impact on operations if an employee enters the workplace with COVID-19.
“This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA,” the agency explained.
In addition, under the ADA, employers may not require antibody testing before permitting employees to reenter the workplace as of July 2022, based on guidance from the Centers for Disease Control and Prevention (CDC).
“CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace,” according to the EEOC. “Based on this CDC guidance, at this time such testing does not meet the ADA’s ‘business necessity’ standard for medical examinations or inquiries for employees.”
Other updates were also made to the guidance.
- Return to work. The ADA permits employers to require a note from a qualified medical professional explaining that it is safe for an employee to return and that the employee is able to perform the applicable job duties after testing positive for COVID-19.
- Hiring. Employers may screen applicants for symptoms of COVID-19 after making a conditional job offer, as long as such screening is done for all entering employees in the same type of job. However, employers may not postpone the start date or withdraw a job offer because of a concern that the individual is older, is pregnant or has an underlying medical condition that puts the individual at increased risk from COVID-19. Should an employer wish to withdraw a job offer when it needs an applicant to start work immediately but the individual has tested positive, has symptoms or has been exposed to someone with COVID-19, the employer should consult and follow the latest CDC guidance, the agency advised.
- Interactive process and reasonable accommodations. The EEOC acknowledged that the pandemic might result in excusable delays during the interactive process. As for reasonable accommodations, the agency provided examples of reasonable accommodations that, absent undue hardship, may eliminate or reduce to an acceptable level a direct threat to self or others: additional or enhanced protective gowns, masks, gloves or other gear; additional or enhanced air filtration systems or units; erecting a barrier to provide separation between an employee and coworkers or the public; or increasing the space between an employee and others. Telework, modification of a work schedule or moving the location where work is performed (from the middle to the end of a production line, for example) could be other options.
- Mandatory vaccinations. Federal law does not prevent an employer from requiring all employees to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII, the ADA and other equal employment opportunity considerations. “As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex or national origin under Title VII or [the Age Discrimination in Employment Act],” the EEOC said. “Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.”
To read the EEOC’s guidance, click here.
Why it matters: The EEOC updated its guidance in light of the changing landscape of the COVID-19 pandemic. Most notably, the agency declared that, going forward, employers that want to conduct worksite COVID-19 testing must meet the “business necessity” standard to comply with the ADA, with considerations ranging from the level of community transmission to what types of contact employees may have with others in the workplace. Employers should be cognizant of the fact that the guidance continues to change and adapt their COVID-19 policies accordingly.