On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its Covid-19 guidance to reflect evolving pandemic and workplace circumstances.
The updated Covid-19 testing guidance recognizes a shift in the standards for testing on-site employees. Employers no longer have the almost unlimited discretion to test in any and all circumstances, and rather must now be able to satisfy the Americans with Disabilities Act (ADA) requirements for “medical examinations.” This standard – the “business necessity” standard – is met only when the testing is “job-related and consistent with business necessity,” and when consistent with up-to-date guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and local public health authorities.
The EEOC included several possible considerations in its guidance for employers to determine whether Covid-19 testing is a business necessity, including:
- The level of community transmission,
- The vaccination status of employees,
- The accuracy and speed of processing for different types of Covid-19 viral tests,
- 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,
- The type of contact employees may have with others in the workplace or elsewhere that they are required to work, and
- The potential impact on operations if an employee enters the workplace with Covid-19.
The EEOC also updated its guidance regarding the confidentiality of Covid-19 vaccination status under the ADA. Employers who require their employees to be vaccinated may also require employees to provide documentation of vaccination, but the ADA requires employers to keep this information and any other medical information confidential and stored separately from the employee’s personnel file. However, there a number of individuals whom the EEOC states medical information may be shared with, so long as the individual(s) also maintain confidentiality. Those individuals include:
- Administrative employees responsible for the recordkeeping of medical information.
- Employees “assigned to permit building entry only by employees” who are compliant with Covid-19, testing and/or masking requirements.
- Employees responsible for ensuring that employees are compliant with vaccination and/or testing requirements, and who need to review medical documentation in order to do so.
In accordance with the CDC’s guidance regarding the inadequacy of antibody testing for the purpose of virus detection and/or immunity from Covid-19, the EEOC has also updated its guidance with respect to workplace antibody testing. The EEOC clarified that antibody testing should not be utilized by employers to determine whether an employee may enter a worksite, and this form of testing is not permissible under the ADA.
Medical Professional Note
Similar to the standard for viral Covid-19 testing, requiring employees to provide a “note from a qualified medical professional explaining that it is safe for the employee to return,” must also be substantiated by a “business necessity.” The EEOC’s guidance requires an employee to provide this documentation upon returning back to the workplace following a Covid-19 infection will satisfy the “business necessity” standard and is therefore permissible under the ADA.
Other Updates to the EEOC Guidance
In addition to the key changes summarized above, the EEOC also revised several other sections of the employer guidance, including the following:
- Employers may screen job applicants for Covid-19 symptoms after making a conditional job offer, so long as the screening is conducted for all incoming employees of the same job type.
- Under certain circumstances, an employer may be permitted to withdraw a job offer when the employer requires immediate employment, and the offeree currently has a Covid-19 infection. This does not permit employers to withdraw a job offer because of concerns that the individual may be at a higher risk of illness from Covid-19 (pregnancy, older age, underlying medical condition).
- Federal Equal Employment Opportunity laws do not prevent employers from requiring employees to use personal protective equipment, however, employers may need to provide exceptions to individuals requesting reasonable accommodations, so long as the accommodation does not violate OSHA requirements. An example of an accommodation, as provided by the EEOC, is “modified face masks for interpreters or others who communicate with an employee who uses lip reading.”
If you have any questions about this guidance, please reach out to us.