By: Gabrielle Long
September 20, 2022
The COVID-19 pandemic has ravaged the United States since the beginning of 2020, and it does not seem to be going away anytime soon. As such, mandatory COVID-19 testing in workplaces has continued to evolve. On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) released new guidance regarding COVID-19 testing in the workplace.
What Stayed the Same
The EEOC did not update its guidance regarding COVID-19 screening methods. Employers who have employees who work physically in person are still allowed to ask those employees if they have tested positive for COVID-19 or if they have any related symptoms. If an employee responds in the affirmative, the employee may not be able to enter the physical workplace. Also, employers are still permitted to ask individual employees questions about symptoms related to COVID-19, or they may request that individuals undergo temperature screenings or testing if there is a reasonable belief that the individual employee may have been infected with the COVID-19 virus.
Business Necessity Standard for Testing
Prior guidance stated that mandatory workplace COVID-19 testing always satisfied the Americans with Disabilities Act (“ADA”) standard that all mandatory medical tests be job related and consistent with business necessity. The new guidance raises the bar for employers by requiring that business necessity be assessed based on the then-current pandemic and workplace circumstances. This is a significant shift from the automatic compliance to which employers are accustomed. The guidance also notes that the current pandemic and workplace circumstances are ever evolving, which means that the “business necessity” standard may change.
The new guidance further clarifies that the new “business necessity” standard and analysis only apply to viral testing, not to antibody testing. Antibody testing cannot meet the business necessity standard since it does not show whether an employee is currently infected with the COVID-19 virus.
Hiring and Onboarding
The EEOC also clarified when COVID-19 screening may occur during the job application process. Generally, an employer may only screen job applicants for COVID-19 after making a conditional job offer so long as such screening is done for everyone in the same job category. However, if an employer screens everyone for the virus prior to allowing them to enter the worksite, and the applicant is required to enter the worksite as part of the application process, then the employer may screen the applicant in the same way it screens everyone else entering the worksite.
Also, an employer may rescind a job offer if an applicant has or has been exposed to COVID-19 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 proximity to others. An employer, however, is forbidden from postponing a start date or withdrawing a job offer due to a concern that an individual is older, pregnant, or has a non-COVID underlying medical condition.
The revised guidance clarifies that the Age Discrimination in Employment Act (“ADEA”) does not include a right to reasonable accommodation due to age, unlike the ADA provides for disabilities. Thus, the ADEA does not require an employer to accommodate an older employee due purely to the employee’s concerns over COVID-19. If, however, an older employee has a medical condition that is protected by the ADA, then a reasonable accommodation may be required. Notably, employers can provide flexibility to older workers since the ADEA does not prohibit such treatment, even if it results in younger employees being treated less favorably.
PPE in the Workplace
The EEOC further updated guidance regarding when employers may require personal protective equipment (“PPE”) and other infection control methods. The new guidance changes the notion that employers could definitely require control methods to now state that, “in most instances,” employers are allowed to require PPE and other infection prevention measures. There is, however, no change in guidance related to religious and disability-related accommodations that may impact PPE requirements.
An employer does not have to show that the vaccination requirements meet the ADA’s “business necessity” standard with regard to all employees, but only as to any employee informing the employer of a disability precluding compliance. Furthermore, the Federal Equal Employment Office (“EEO”) does not prevent employers from requiring documentation or other confirmation of compliance with vaccinations, but some laws require exceptions depending on the employee and the accommodation that is requested.
Regarding the confidential nature of vaccine information, the new EEOC guidance states that an employee’s vaccination information may be shared with other employees if they need it to perform their job duties. Employees, however, who receive the information must keep the information confidential.
Considering the evolving nature of guidance for COVID-19 testing in the workplace, it is important that employers remain vigilant and up to date on current guidance to ensure they are compliant with all applicable laws.