EEOC Updated Guidance on COVID-19
By Rebecca Bruch, Esq.
More than two years have passed since our world was turned upside down almost overnight with the onslaught of COVID. As employers, parents, lawyers, teachers and businesses, we “punted” trying to figure out what to do. Likewise, the CDC, state and local governments, and the EEOC “punted.” Now, with the advent of vaccines and boosters, we take COVID much more in stride. People wearing masks are in the minority, whether in large crowds, at schools and businesses, or on an airplane. I find myself caught off-guard when the occasional doctor or hospital visit requires me to dig a mask out of the bottom of my purse. At the same time, it seems like there is hardly a person I know that hasn’t had COVID in the last six months, including me and my two granddaughters who came back from a summer trip to Washington D.C. with the unwelcome souvenir.
In light of the changing situation, in July 2022, the EEOC updated its guidance on conducting COVID-19 tests and other pandemic-related issues. I wanted to share some of those changes so that you are reminded about the dos and do-nots even though the mandates have definitely loosened up.
Testing of Employees
The updated guidance from the EEOC makes clear that ADA-covered employers must now determine whether the current pandemic and workplace circumstances justify testing to prevent transmissibility. The testing must be job-related and consistent with business necessity. The factors they suggest include the following:
- The level of community transmission. What is the positivity rate in your community?
- Vaccination status of employees. Yes, it is ok to ask.
- The accuracy and speed of processing for the different types of COVID tests.
- What are the breakthrough infections for employees who are up-to-date with vaccinations?
- Ease of transmissibility of the latest variants.
- Possible severity of illness from the current variants. Most everyone I know, including me and my littles only experienced symptoms of a mild cold.
- Contact employees may have with others in the workplace, including medically vulnerable individuals.
- Potential impact on operations if an employee enters the workplace with COVID-19.
Screening Applicants for COVID-19 Symptoms
Prior EEOC guidance allowed for screening of job applicants only after making a conditional offer, and as long as the employer does so for all applicants in the same type of job. In the updated guidance, the language remains the same, but adds that if everyone is screened, including applicants, employees, contractors, and visitors, before permitting entry to the worksite, then an applicant who needs to enter the facility as part of the application process, but before an offer is made, may also be screened. But the screening process must be the same as everyone else. Employers may not require antibody testing. It is not considered a business necessity.
Return to Work After Being Out with COVID
If an employee is out from work related to COVID, an employer may require a note from a medical professional explaining that it is safe for the employee to return with no risk of transmission, and the employee is able to perform the job duties. In the alternative, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to work without confirmation from a medical professional.
Withdrawal of a Job Offer When An Employer Needs and Applicant to Start Work Immediately At the Worksite Or In The Physical Presence of Others Outside the Worksite, If An Individual Has Tested Positive for COVID-19
Employers should consult and follow current CDC guidance that explains when and how it would be safe for an individual who currently has COVID-19 symptoms or has been exposed recently to someone with COVID-19 to come to work. An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer 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. Consider whether an individual may only need a short period of time for isolation or quarantine, and whether you can adjust a start date or permit telework if job duties can be performed remotely. An employer may not postpone the start date or withdraw a job offer because of the employer’s concern that the applicant is older, pregnant, or has an underlying medical condition that puts the individual at increased risk. An employer’s concern for an applicant’s well-being does not excuse an action that is otherwise unlawful discrimination.
Delays During the Interactive Process
Even though circumstances have changed regarding COVID-19 and the interactive process, it is possible that an employer may face new challenges that interfere with responding expeditiously to a request for an accommodation. For example, reopening a workplace may bring a higher number of requests for accommodation. An employer must show specific pandemic-related circumstances justified the delay in providing a reasonable accommodation to which the employee was legally entitled. To the extent pandemic-related circumstances cause a justifiable delay in the interactive process, employers are encouraged to use interim solutions to enable employees to keep working as much as possible.
These are a few examples of the updated guidance that was recently issued by the EEOC. For a full explanation, be sure to look at the updated guidance at the EEOC website. The latest guidance is dated 7/12/22, and can be found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
If you have any questions, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.