After several months, the EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws, with a particular focus on the workplace screening, testing, and mandatory vaccination policies. This guidance, updated on July 12, 2022, provides important clarifications to Section A (Disability-Related Inquiries and Medical Exams), Section C (Hiring and Onboarding), Section G (Return to Work), and Section K (The ADA and COVID-19 Vaccinations). We discuss the key details below.
Employers Must Show that Administering a Viral Test as a Mandatory Screening Measure is Job Related and Consistent with Business Necessity.
The EEOC has clarified its guidance regarding the administration of viral tests as a mandatory screening measure and now requires that these measures meet the “job-related and consistent with business necessity” standard under the Americans with Disabilities Act (“ADA”). The EEOC’s previous guidance simply noted that employers were permitted to administer viral tests for employees in the workplace (such approach was deemed automatically compliant with the ADA). This update will require employers to engage in an assessment of their workplace to determine if viral testing as a screening measure meets the “business necessity” standard. Although testing will be permitted under certain circumstances, employers should engage in this assessment and should not assume that testing is permitted in all cases.
An employer’s use of viral tests to screen employees in the workplace will meet the “business necessity” standard when it is consistent with guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state and local public health authorities that are current at the time of testing. The EEOC notes that employers must regularly review their testing policies to ensure they are in line with any new and updated guidance by these authorities.
Employers that are seeking to implement mandatory testing as a screening measure may consider, as part of the “business necessity” assessment, the following factors: (1) level of community transmission, (2) the vaccination status of employees, (3) the accuracy and speed of processing for different types of COVID-19 viral tests, (4) the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, (5) the ease of transmissibility of the current variant(s), (6) the possible severity of illness from the current variant, (7) what types of contacts employees may have with others in the workplace or elsewhere that they are required to work, and (8) the potential impact on operations if an employee enters the workplace with COVID-19. The CDC recommends the use of COVID-19 Community Levels (which generally shows high transmission of COVID-19 around the U.S.) to determine the impact of COVID-19 on communities and continues to encourage vaccination (including booster shots). The CDC’s guidance indicates that COVID-19 is ongoing and still a public health crisis, which would support an employer’s decision to continue testing in the workplace in many cases.
The EEOC further reiterated that antibody testing does not meet the “business necessity” standard and is therefore still prohibited under the ADA. This is because, according to recent CDC guidance, antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection, and as a result, it should not be used to determine whether an employee may enter the workplace.
Employers May Screen a Job Applicant After Making a Conditional Job Offer.
The EEOC’s updated guidance clarifies that an employer may screen job applicants for COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. An employer, may, however, screen an applicant in the pre-offer stage who is required to be in the workplace as part of the application process (e.g. for a job interview) if the employer screens everyone entering the workplace, such as applicants, employees, contractors, and visitors. Further, if the applicant is unable to start their job because of COVID-19, the guidance notes that employers should follow current CDC guidance to determine whether an individual can safely enter a workplace or otherwise work in the physical presence of others (under certain circumstances, the employer may revoke a job offer).
Employers Can Require Medical Documentation for Employees Returning to Work, but Do Not Have To.
The EEOC continues to permit employers to require documentation from a qualified medical professional noting that it is safe for an employee to return to the workplace and perform their job duties after a COVID-19 infection. In a more significant change, however, the guidance now clarifies that employers should follow CDC guidance and consider other practical ways to determine the safety of allowing an employee to return to work, including relying on local clinics to provide a form, stamp, or an e-mail to confirm that the employee is able to return to work.
Personal Protective Equipment, and Reasonable Accommodations.
The EEOC guidance clarifies that employers may require employees to wear personal protective equipment (PPE) (e.g. masks). For those employers that must comply with OSHA regulations, such regulations do not prohibit the use of reasonable accommodations under the equal employment opportunity laws, as long as the accommodations do not violate OSHA regulations. Thus, employers that require PPE must discuss and provide a reasonable accommodation under the ADA to an employee with a disability that requires an accommodation to comply with the employer’s PPE requirement.
Employers May Continue to Implement Mandatory Vaccination Policies.
Finally, the EEOC guidance also clarifies the use of mandatory vaccination policies. When a mandatory vaccination policy is in place for all employees, employers need not demonstrate that such policies meet the ADA’s “business necessity” standard. The standard only applies to those employees who inform their employer that they have a disability preventing compliance with the vaccination policy. In that case, the employer may not require the employee to comply with the vaccination policy, unless that employee would pose a “direct threat” to the health and safety of the individual or others. A direct threat is a significant risk of harm that cannot be reduced or eliminated by wearing a mask, working a staggered shift, changes in the work environment, telework, or reassignment to a vacant position in a different workspace. The EEOC reminds employers that they must provide reasonable accommodations for employees with a disability unless providing an accommodation would pose an undue hardship on the business. While the EEOC did not update its guidance in connection with the reasonable accommodation process for religious accommodation requests, as we previously discussed in this post, employers must also provide reasonable accommodations to employees with a sincerely held religious belief, unless the reasonable accommodation would pose an undue hardship on the employer.
If the employer does implement a mandatory vaccination policy, the employer may require documentation or other confirmation of an employee’s vaccination status. The EEOC reminds employers that a mandatory vaccination policy may not have a disparate impact on or disproportionately exclude employees based on their protected classes.
The EEOC has continuously updated sections of its guidance for employers over the last two years. This most recent update, which contains significant changes to the testing guidance, in particular, highlights the importance of tracking the EEOC’s changes. Employers should continue to monitor these updates and assess how they might modify company policy or practice consistent with the updated guidance. Mintz continues to monitor these changes and stands ready to assist businesses in preparing and updating their vaccination-related policies and to ensure federal, state, and local compliance.