What Employers Need to Know about the New EEOC Guidance Regarding COVID-19 and the Workplace

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:

• “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 elsewhere that they are required to work; and
• The potential impact on operations if an employee enters the workplace with COVID-19.”
  

See Revised Guidelines Question A.6.

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.

ADDITIONAL UPDATES
          The Revised Guidelines also provide the following updates/changes:

• Permissible Requests for Documentation from Employees Returning to Work: Employers may still require an employee returning to the workplace after being out with COVID-19 to provide a note from a health care provider (“HCP”) stating it is safe for the employee to return to work and that the employee can perform his/her job duties. However, employers may now alternatively follow CDC guidance to determine whether it is safe to allow the employee to return to the workplace without confirmation from an HCP. In addition, the Revised Guidelines encourage employers to consider other ways to determine if it is safe to permit employees to return to work in case HCPs cannot provide documentation promptly, or at all. Examples of alternatives “might include reliance on local clinics to provide a form, a stamp, or an e-mail to confirm that an individual is no longer infectious and is able to resume working.” See Revised Guidelines Question A.5.
  
  
• Continue to Recognize the Confidentiality of Medical Information: The Revised Guidelines remind employers that an employee’s COVID-19 vaccination status is confidential medical information under the ADA. Vaccination status/records should be stored separate from the employee’s personnel file and may be shared only with other employees with a legitimate business need to know. When shared, those employees must also maintain confidentiality. For example, a security guard assigned to permit building entry only by employees in compliance with a work restriction (such as a COVID-19 vaccination mandate or testing) should only receive a list of individuals who may, or may not, enter the worksite but should not receive confidential medical information about why a person is (or is not) on the list. See Revised Guidelines Question K.4.
  
  
• Ensure Compliance Before Withdrawing Job Offers: When an individual scheduled to begin working tests positive for COVID-19, has COVID-19 symptoms or has been recently exposed, an employer may only withdraw a job offer if, “(1) the job requires an immediate start date, (2) CDC guidance recommends that the person not be in proximity to others, and (3) the job requires such proximity to others” (either at the worksite or elsewhere). Even in those cases, the Revised Guidelines encourage employers to consider an adjusted start date or permit telework as an alternative to withdrawing the job offer. Employers cannot permissibly unilaterally postpone or withdraw a job offer because of concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19. See Revised Guidelines Questions C.4 and C.5.
  
  

COVID-19 continues to present novel and complex issues for employers. Navigating the maze of regulations while maintaining work efficiency and safety is an ongoing challenge. Lawrence & Bundy stands ready to assist you. If you have any questions or would like additional information, please reach out to any L&B attorney with whom you work.