With COVID-19 cases again on the rise thanks to the BA.5 subvariant, the Equal Employment Opportunity Commission ("EEOC") has issued new guidance that, for the first time since the onset of the pandemic, places some restrictions on an employer's unlimited ability to test employees for COVID-19.
On July 12, 2022, the EEOC updated its ongoing questions and answers document, "What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws," to address an employer's ability to screen employees for COVID-19. In the early stages of the pandemic, the EEOC allowed employers to readily require COVID-19 viral testing of employees prior to reentry to the workplace, stating that such testing met the Americans with Disabilities Act ("ADA") requirement that a medical examination be "job-related and consistent with business necessity." Now, more than two years later, the EEOC is asking employers to consider relevant facts of the current pandemic and individual workplace circumstances when making a "business necessity" assessment concerning COVID-19 viral testing. Considerations when making this assessment, according to the EEOC, may include:
- "level of community transmission";
- "vaccination status of employees";
- "the accuracy and speed of processing for different types of COVID-19 viral tests";
- "the degree to which the 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";
- "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."
Given the ongoing and constantly evolving state of the pandemic, the EEOC clarified that this change to COVID-19 viral testing under the ADA "is not meant to suggest that such testing is or is not warranted; rather the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted and consistent with the requirements of the ADA."
The EEOC also reiterated that an employer cannot require antibody testing before permitting employees to enter the workplace. Pursuant to Centers for Disease Control and Prevention ("CDC") guidance, as of July 2022, antibody testing does not show whether an employee has a current infection or that the employee is immune to infection. Therefore, it does not meet the ADA's "business necessity" requirement for permissible medical examinations by employers.
Additionally, per the updated EEOC guidance, employers can screen applicants for symptoms of COVID-19 after making a conditional job offer, so long as the employer implements this screening for all entering employees in the same type of job. And an employer can withdraw a job offer 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." However, if this satiation arises, the EEOC encourages employers to adjust the start date or permit telework, if consistent with the job duties, if possible. Similarly, an employer cannot unilaterally withdraw a job offer or postpone the start date out of concern for the employee because the employee is older, pregnant, or has an underlying medical condition placing the individual at an increased risk of illness from COVID-19.
The timing of this guidance is coincidental in light of recent reports of the BA.5 subvariant being more transmissible than other COVID-19 variants. Notwithstanding, employers should take note of this EEOC update, remain up to date on CDC guidance and review their current practices and policies concerning COVID-19 testing at their workplaces to ensure compliance. And when in doubt, it is always best to consult with an experienced employment law attorney.
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