COVID-19 continues well into 2022 and employers continue to adapt to the ever-changing world of COVID. Recently, the Equal Employment Opportunity Commission (the "EEOC") updated its COVID guidance for employers. The following are key takeaways from the recent EEOC guidance:
- Under the Americans with Disabilities Act (the
"ADA"), an employer, as a mandatory screening measure,
may administer a COVID-19 viral test when evaluating an
employee's initial or continued presence in the workplace if
the employer can show that the test is job-related and consistent
with business necessity. If an employer seeks to implement
screening testing for employees such testing must meet the
"business necessity" standard. According to the EEOC,
considerations in making the "business necessity"
assessment may include the level of community transmission, the
vaccination status of employees, 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, 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.
- When an employee returns to the workplace after being out with
COVID-19, the ADA allows an employer to require a confirmation from
a qualified medical professional explaining that the individual is
able to safely return.
- Under the ADA, an employer may not require antibody testing
before permitting employees to re-enter the workplace.
- Employers may screen applicants for symptoms of COVID-19 after
making a conditional job offer, as long as the employer does so for
all entering employees in the same type of job.
- An employer may not postpone the start date or withdraw a job offer because of the employer's concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at risk from COVID-19.
Click here for further COVID-19 guidance from the EEOC.
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