On July 12, 2022, the EEOC issued updated COVID-19 guidance for employers, reflecting the ever-changing but persistent impact of the virus on the workplace. Key updates include the following:
- Workplace COVID-19 testing
- Previously, employers could require COVID-19 testing (although it is a medical exam under the ADA) because the EEOC recognized that a person with the virus would pose a direct threat to the health of others.
- Under the revised guidance, employers may only mandate COVID-19 testing if they show that the testing is “job-related and consistent with business necessity.” (A.6.)
- Mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the CDC, FDA, and state and local public health authorities. Employers may also consider such factors as:
- Community transmission rates
- Vaccination status of employees
- Possibility of breakthrough infections for fully vaccinated employees
- Transmissibility of and severity of illness from current variants
- Potential impact on the workplace if an employee enters with COVID-19 (A.6.)
- Antibody testing does not meet the ADA’s “business necessity” standard for a medical exam; employers therefore may not require such testing before allowing employees to re-enter the workplace. As the EEOC notes, an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection. (A.7.)
- Hiring and job offers
- If an employer screens everyone for COVID-19 before allowing entry to the worksite, it can screen an applicant in the pre-offer stage who needs to be in the workplace. (C.1.)
- An employer can also screen applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all applicants in the same job type. (C.1.)
- After an applicant has been offered a job, an employer may only withdraw that offer based upon the applicant’s positive COVID-19 test, symptoms, or exposure if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. (C.4.)
- Interactive process/ accommodation requests
- Delays in engaging in the interactive process and/or responding to employee accommodation requests are no longer acceptable unless an employer shows specific pandemic-related circumstances justified the delay. (D.17.)
- Vaccinations
- Consistent with prior guidance, employers may require all employees to be vaccinated against COVID-19, subject to Title VII and the ADA’s reasonable accommodation requirements. Employers may also require proof of such vaccination. (K.1.)
- An employee’s vaccination status must be kept confidential and separated from the regular personnel file. However, an employer may share the vaccination information with other employees who need it to perform their job duties. Such employees also must keep the information confidential. (K.4.)
This is not a comprehensive list of the many issues covered in the updated COVID-19 guidance. Please reach out to your partners at Lake Effect HR & Law to ensure that your organization’s COVID-19 policies and practices are in full compliance with current EEOC guidelines. We are here to answer all of your questions about COVID-19 compliance and will continue to monitor important legal and HR developments in this area. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.
