Bryn Goodman Glenn S. Grindlinger Daniel V. Kitzes August 10 2022 EEOC updates workplace guidance on covid-19 protocols Fox Rothschild LLP | Employment & Immigration - USA Bryn Goodman, Glenn S. Grindlinger , Daniel V. Kitzes Employment & Immigration Covid-19 testing policiesMandatory employer vaccination programmesReasonable accommodationsCommentThe Equal Employment Opportunity Commission (EEOC) recently updated its technical assistance questions and answers related to covid-19 and its interaction with federal anti-discrimination laws. The revisions – designed to adapt the guidance to the changing covid-19 landscape – have significant implications for employers' testing, vaccination and accommodation policies.Covid-19 testing policiesPreviously, the EEOC viewed mandatory worksite covid-19 testing as compliant with the Americans with Disabilities Act (ADA) standard that medical testing be "job related and consistent with business necessity". The EEOC guidance, which was updated on 12 July 2022, now requires employers to individually assess whether viral screening testing is justified considering its workplace and current pandemic circumstances. An employer seeking to require regular covid-19 testing as a requirement to return to the office must now consider whether it "can show [that testing] is job-related and consistent with business necessity".Notably, however, the EEOC states that employers will satisfy the "business necessity" requirement if their testing is consistent with current guidance from:Centers for Disease Control and Prevention (CDC);the Food and Drug Administration; and/orstate and local public health authorities.According to the EEOC, employers should also consider the following factors when determining whether testing is job-related and consistent with business necessity:community transmission levels;employees' vaccination status;accuracy and speed of processing for different types of viral tests;what types of contacts employees may have with other employees and individuals in the workplace;the degree to which breakthrough infections are possible for employees who are "up to date" on vaccinations;the ease of transmissibility of current variant(s);the possible severity of illness from current variant(s); andthe potential impact on operations if an employee enters the workplace with covid-19.The new EEOC guidance is more in line with some states' stricter standards, such as those of California's Department of Fair Employment and Housing (DFEH). The DFEH guidance has long couched mandatory testing in the need to establish that it is "job-related and consistent with business necessity". Specifically, the DFEH guidance provides that:[e]mployers may require that employees submit to viral testing in order to determine whether an employee has COVID-19 infection, before allowing an employee to enter the workplace. That is because an employee with COVID-19 is unable to perform the employee's essential duties in a manner that would not endanger the health or safety of others in the workplace even with reasonable accommodation there.The new EEOC guidance reflects the developing reality that vaccination rates, community transmission and other environmental factors are important considerations in assessing whether employees can perform duties safely without testing.Testing applicantsIf an employer determines that mandatory testing is a business necessity and required for anyone to enter the workplace (ie, employees, visitors, contractors and guests), and the requirement is applied uniformly, employers may also test job applicants. Otherwise, applicants should only be tested after a conditional offer of employment has been made. An employer may withdraw a job offer if an employee tests positive for covid-19 or is required to quarantine or isolate only 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. (No emphasis added.)Nevertheless, the EEOC encourages employers to consider whether adjusting a start date or permitting telework are feasible solutions. Employers may not withdraw a job offer because they are concerned an individual is more vulnerable or more likely to develop severe disease from covid-19.No antibody testingAn employer may never require antibody testing as a condition to enter the workplace or return to work. The EEOC explains that:antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace.Mandatory employer vaccination programmesSimilarly, while the EEOC's guidance permits employers to implement mandatory vaccination requirements, subject to reasonable accommodation requirements, there are discrimination and confidentiality considerations associated with such programmes. The EEOC cautions that such requirements may be discriminatory if they affect certain demographics more than others. Employers are not exempt from a disparate impact claim if such a vaccine requirement disproportionately excludes certain employees from the workplace based on:race;colour;religion;sex; ornational origin.Employers that choose to implement a vaccination policy should evaluate whether the requirement disproportionately impacts some protected groups more than others.Employers must also be mindful of confidentiality concerns. If an employer ultimately implements a mandatory vaccination requirement, it can require documentation confirming that employees are up to date on their vaccination or "fully vaccinated", as defined by the CDC. However, under the ADA, all such medical information must be kept confidential and stored separately from the employee's personnel files. This information should only be shared with employees who need it to perform their job duties (eg, to perform recordkeeping of such documentation and limit building entry).Reasonable accommodationsThe EEOC's guidance as to disability or religious accommodation requests continues to require that employers engage in the interactive process by discussing the request and providing reasonable accommodations that do not cause an undue hardship to the business. Employers will likely see more accommodation requests regardless of whether they implement testing or vaccination requirements. Employers should consider but are not required to implement procedures that clearly establish how to apply for and respond to employees' requests for reasonable accommodations. Employers that fail to timely respond to such requests will be responsible for showing how specific pandemic-related circumstances justified a delay in offering or providing a reasonable accommodation.The EEOC clarifies that under the ADA the employer does not need to proactively ask an employee if they require an accommodation, even if they are on record having a disability. However, state and local laws might require the employer to affirmatively inquire about the need for accommodation (eg, the New York City Human Rights Law and the California Fair Employment and Housing Act place the burden on the employer if it had reason to know that the person may need an accommodation). Under certain circumstances, employers could be required to provide reasonable accommodation to employees who are at an increased risk for severe infection with covid-19, such as those who have a specific medical condition. However, the EEOC notes that age alone is insufficient to warrant a reasonable accommodation from a mandatory vaccination policy.PPEThe EEOC's guidance also states that employees who cannot comply with personal protective equipment (PPE) and other infection control measures (eg, hand washing) due to a disability or religious belief must be offered reasonable accommodations unless such accommodations pose an undue hardship to the business. However, employers and employees must remain complaint with regulations issued by the Occupational Safety and Health Administration (OSHA) and other health and safety laws. Indeed, the EEOC acknowledges that some employers may need to comply with regulations issued by OSHA that require the use of PPE. In short, OSHA regulations do not prohibit reasonable accommodations under ADA or Title VII; however, if there is a direct conflict between the accommodation and OSHA, the employer can deny the accommodation.Direct threatIn addition, if the employer believes that allowing an employee with a disability to return to work would pose a "direct threat" (that is "significant risk or substantial harm") to the health or safety of the employee or others that cannot be eliminated or reduced by a reasonable accommodation, then the employer may exclude the person from the workplace. Whether the condition poses a direct threat must also be an individualised assessment considering:the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.This assessment should include considerations based on the severity of the pandemic in a particular area and the employee's own health (eg, is the employee's disability well controlled?), vaccination status and the employee's particular job duties. The EEOC clarifies that simply having a medical condition that places someone at higher risk for severe disease with covid-19 is not enough to be considered a direct threat.If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to themself or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Even where a direct threat exists, the employer cannot exclude the employee if there are reasonable accommodations that would eliminate or sufficiently reduce the risk so that it would be safe for the employee to return to the workplace, while still permitting the employee to perform the essential functions of the job.The EEOC offered examples of reasonable accommodations that, absent undue hardship, may eliminate a direct threat to self or others:additional or enhanced protective gowns, masks, gloves or other gear beyond what the employer may generally provide to, or require from, employees returning to its workplace;additional or enhanced protective measures, such as high efficiency particulate air filtration systems or units, or other enhanced air filtration measures;erecting a barrier that provides separation between an employee with a disability and co-workers and the public;increasing the space between an employee with a disability and others;elimination or substitution of certain less critical or incidental job duties;telework;modification of work schedules (if that decreases contact with co-workers and/or the public when on duty or commuting); andmoving the location of where one performs work (eg, moving a person to the end, rather than the middle, of a production line if that provides more physical distancing).CommentEmployers should consult their attorneys when developing their covid-19 safety requirements and accommodation policies, and stay up to date with federal, state and local public health recommendations.For further information on this topic please contact Bryn Goodman, Glenn S Grindlinger or Daniel V Kitzes at Fox Rothschild LLP by telephone (+1 310 598 4150) or email ([email protected], [email protected] or [email protected]). The Fox Rothschild LLP website can be accessed at www.foxrothschild.com.