Since the start of the pandemic, employers have worked diligently to navigate the maze of regulations impacting their employee workforces. New EEOC guidance just added several new twists.
On July 12, 2022, the EEOC revised its prior guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“Revised Guidelines”). The Revised Guidelines make several important changes, most notably, changing the standard for when employers may permissibly test employees for COVID-19.
NEW STANDARDS FOR DETERMINING WHEN TESTING IS ADA COMPLIANT
Employers can no longer assume that testing all on-site employees is permissible. The Revised Guidelines now require employers to make individualized assessments to ensure testing is “job-related and consistent with business necessity” as required by the Americans with Disabilities Act (“ADA”.)
There are two primary ways to establish business necessity. First, employers may show that their actions are consistent with guidance from the Centers for Disease Control and Prevention (“CDC”), the Food and Drug Administration (“FDA”), and/or state/local public health authorities current at the time of testing. Since these agencies periodically update their guidelines, employers should ensure they are relying on the most recent agency guidance.
Second, the Revised Guidelines outline several considerations for employers who wish to implement or maintain mandatory screening tests for employees. Considerations in making the “business necessity” assessment may include:
Employers with multiple worksites should be careful to review testing policies on a site-by-site basis.
ANTIBODY TESTING NO LONGER PERMITTED UNDER THE ADA
Under the Revised Guidelines, antibody testing is no longer permitted. Viral tests, however, meet the business necessity standard. See Revised Guidelines Question A.7.
WORKPLACE COVID-19 SCREENING STILL PERMITTED
Employers may still ask all employees physically entering the workplace if they have tested positive for COVID-19 or have symptoms associated with COVID-19. In addition, the Revised Guidelines now explicitly permit employers to screen applicants coming on-site for a job interview if the employer also screens all other employees, applicants, contractors, and visitors coming on-site for COVID-19 symptoms. If an employer wishes to screen only an individual employee rather than conducting general screening of all employees, the employer must still have a reasonable belief based on objective evidence that the individual may have COVID-19. See Revised Guidelines Question C.1.
MANDATORY VACCINATIONS PERMITTED PROVIDED EMPLOYERS ALLOW FOR REASONABLE ACCOMMODATIONS
The Revised Guidelines permit employers to require employees to be vaccinated against COVID-19, and to require documentation or other confirmation that employees are up to date on their vaccinations and boosters. However, employers who elect such mandatory vaccination policies must also provide reasonable accommodations consistent with Title VII and ADA requirements. See Revised Guidelines Question K.1.
An employer may require an individual with a disability to meet a mandatory vaccination policy requirement if the mandatory vaccination policy is job-related and consistent with business necessity as applied to the specific employee with a disability. Employers need not be able to prove that the mandatory vaccination policy is job-related and consistent with business necessity as applied to all employees, but only to the employee who informs the employer that their disability prevents compliance. If that disabled employee cannot meet the safety-related mandatory vaccination policy because of a disability, the employer cannot require compliance for that individual unless it can show the person would pose a “direct threat” to the health or safety of the employee or others while performing their job. Determining whether an employee poses a “direct threat” to their own safety or that of co-workers is a fact-intensive inquiry with high hurdles of proof. See Revised Guidelines Question K.5. Employers considering whether an employee poses a “direct threat” should consult legal counsel to help avoid legal violations.
The Revised Guidelines also provide the following updates/changes:
We contribute to the legal field by sharing our experience and insights in the form of articles and presentations designed to improve your way of doing business. You may search by category below, or contact us if you are interested in a field of study not listed here.