What You Should Know about the EEOC’s Updated COVID-19 Guidance
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) published updated COVID-19 guidance (Updated Guidance) concerning “return to work” releases after recovering from a COVID-19 infection; mandatory vaccination policies; COVID-19 testing/screenings; and reasonable accommodations. Significantly, employers are now required to show that their mandatory COVID-19 vaccination policies comply with the “business necessity” test set forth in the regulations to the Americans with Disabilities Act (ADA).
COVID-19 Testing as a Mandatory Screening Measure for On-Site Workplace Presence
Under the ADA, a COVID-19 test constitutes a medical examination. At the beginning of the pandemic, the EEOC took the position that the “business necessity” standard for conducting medical examinations was always met for employers to conduct mandatory worksite COVID-19 testing. As more scientific information about COVID-19 has been uncovered since the inception of the pandemic, the EEOC issued the Updated Guidance requiring employers to assess whether COVID-19 testing is “job-related and consistent with business necessity,” based on both current pandemic and individual workplace circumstances.
The Updated Guidance provides that use of COVID-19 testing will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA) and/or state/local public health authorities that is current at the time of testing. The Updated Guidance also lists certain factors that employers may consider, including:
- the level of community transmission;
- the vaccination status of the employee;
- the degree to which breakthrough infections are possible for employees who are “up-to-date” on vaccinations;
- the ease of transmissibility of the current variant(s);
- the possible severity of illness from the current variant(s);
- what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
- the potential impact on operations if an employee enters the workplace with COVID-19.
The Updated Guidance also makes it clear that antibody testing remains prohibited because the test does not meet the “business necessity” standard under the ADA.
“Return to Work” Releases
The Updated Guidance also sets forth when an employer can require a release to return to work after recovering from a COVID-19 infection. Employers are still permitted to require a note from a qualified medical professional explaining that it is safe for the employee to return to work. However, the Updated Guidance recommends that employers consider other practical ways to determine whether it is safe for an employee to return to work, if physicians or other health care providers are unable to provide the required documentation (e.g., rate of infection has significantly increased, delaying a timely response from a physician or other health care treatment provider). An employer may rely on CDC guidance for returning to work, or an employer could allow local health care clinics that treated the employee to submit documentation such as a return-to-work form provided by the employer, or an email confirming that the employee is no longer infectious for COVID-19 and can safely return to work.
In addition, the Updated Guidance provides clarification regarding mandatory vaccination policies and employees seeking exemption. Consistent with its prior guidance, the EEOC counsels that an employer may require employees to be vaccinated against COVID-19. However, such requirements are subject to the accommodation mandates of Title VII and the ADA. Where an employer has a mandatory vaccination policy, federal law does not prohibit the employer from requiring documentation to confirm the employee’s vaccination status.
The Updated Guidance further advises that where an employee seeks an accommodation, the employer must evaluate whether the accommodation would pose a “direct threat” to the health and safety of the employee or others. In determining whether a direct threat exists, an employer must engage in an individualized assessment of the employee’s ability to safely perform essential job functions. The assessment factors include:
- 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.
The EEOC cautions that a determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.
The Updated Guidance reminds employers that an employee’s COVID-19 vaccination information is considered medical information and should be kept confidential and stored separately from the employee’s personnel file. The Updated Guidance further clarifies that vaccination information may be shared with employees who need it to perform their job duties but emphasized that such employees must keep the information confidential.
The Updated Guidance also provides clarification that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination against individuals aged 40 and over – does not include a right to reasonable accommodation due to age, unlike the ADA. The Updated Guidance notes, however, that if the older worker has a medical condition that brings them under the protection of the ADA, a reasonable accommodation may apply.
Under the Updated Guidance, an employer can now screen job applicants for COVID-19 at the worksite if the employer currently screens their employees, contractors, visitors, etc., for COVID-19 before permitting entry to the worksite.
The EEOC further clarifies when an employer may withdraw a job offer if an applicant has or has been exposed to COVID-19. The new guidance states that employers may withdraw the job offer if: (1) the job requires an immediate start date; (2) CDC guidance recommends the person not be in the proximity of others; and (3) the job requires proximity to others.
Employers should review and reevaluate their current mandatory COVID-19 testing protocols to ensure they comply with the EEOC’s “business necessity” requirements. Furthermore, employers should determine if there are acceptable alternatives to a note from a physician or other health care treatment provider for a release to return to work after an employee has recovered from a COVID-19 infection. Employers should engage in individualized assessment for those employees who seek a reasonable accommodation from vaccination. Finally, employers should consult with their employment counsel to ensure that they are compliant with the latest CDC, EEOC, state and local governmental guidance when evaluating COVID-19 related policies. For questions or additional information specific to your organization, please contact your regular AT lawyer or one of the authors listed below.