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EEOC Updates Pandemic Guidance

2022-07-19

Move away from a “direct threat” analysis to a “business necessity” focus

The Equal Employment Opportunity Commission (EEOC) issued updated guidance to assist employers address COVID-19 related issues while considering workplace bias laws, such as the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  EEOC recognizes the questions that employers are facing with respect to COVID-19 testing, vaccinations, and return-to-workplace matters and has made a drastic pivot in their guidance to fit with the current phase of the pandemic.  The agency has moved back to its previous pre-pandemic interpretations of laws which should help employers who are working towards reopening offices during another COVID-19 surge.

The following is a summary of the key takeaways from the new guidance.

Workplace Testing

  • EEOC will return to the pre-pandemic ADA standard that requires viral testing to be job related and consistent with business necessity, by removing the language stating that screening testing can be justified based on a direct threat analysis.  The “business necessity” standard must be consistent with the CDC, the Food and Drug Administration, as well as state and local public health authorities at the time of the testing.
  • Employers can no longer require antibody testing.  Based on current CDC guidance, EEOC feels that since this test may not show if an employee has a current infection or is immune from COVID-19, antibody testing cannot meet the “business necessity” standard.

Return to the Workplace

  • Employers may request that an employee returning from a COVID-19 illness provide a note from a medical professional explaining that the person is able to safely return to work. 
  • Employers may continue to require workers to wear personal protective equipment and observe other infection control practices but must consider accommodation requests due to a disability or religious accommodation. 

Reasonable Accommodations

  • EEOC identifies a best practice for employers to provide information to their employees prior to returning to the office about their disability and religious reasonable accommodation process and to provide flexibility for older workers with higher COVID-19 risks.
  • EEOC acknowledges that pandemic related delays in processing reasonable accommodation requests were inevitable when employers were shutting down offices and continues to be understandable to justify a delay in providing a reasonable accommodation.  However, EEOC suggests that employers find interim solutions to allow the employee to keep working.

Vaccinations

  • Employers may continue to make COVID-19 vaccinations mandatory and require documentation of their vaccination, subject to reasonable accommodation and confidentiality requirements.
  • An employee’s COVID-19 vaccination status, like all medical information, must be kept confidential and separated from the employee’s personnel file.
  • EEOC continues to reiterate that there is no limit on the incentives, including both rewards and penalties, that an employer may provide to an employee who voluntarily receives a COVID-19 vaccination, from a health care provider not affiliated with the employer.

Workplace Screening /Job Offer Cancellations

  • COVID-19 screening questions can only be done when a conditional offer has been made and only if the practice is consistently applied to all candidates for the same type of work. Or an employer can screen all applicants at the pre-offer stage if everyone is screened entering the worksite.
  • A newly hired employee may have an offer rescinded if they test positive for COVID-19 or have been exposed and the employer needs them to begin work immediately and they would be working closely with others, either at the workplace or elsewhere.

Employers should review both the new EEOC guidance, as well as their existing policies and practices related to testing, screening, job offers, vaccination programs, reasonable accommodation procedures, and records retention requirements.  Additionally, employers should ensure that their policies comply with other federal, state, and local laws.

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.