While I was home recently quarantining for my second case of COVID-19, the EEOC precipitously provided additional guidance regarding COVID workplace safety compliance. So, I can attest that we may have let our guard down too soon, and the virus and its mutations are still raising their ugly heads.
But not to worry – the EEOC is here to help.
With the current employee shortage, recruiting good employees is at the top of everyone's list.
You can still require a potential employee during the post offer/pre-employment time frame to have a COVID test. But don't forget, you must be able to show a business necessity for the testing requirement. What is business necessity? It includes considerations such as community spread levels, the chance for contagion in your workplace and the potential for breakthrough infections, and how effective the vaccine is against the au courant strain.
What happens if your perfect new potential employee cannot pass the test? Review the current CDC guidelines and see what options are available to make the job offer work. Be careful not to be the employer who withdraws a job offer because it perceives an employee is too medically fragile, or old and thus are going to be at a greater risk of “catching” or dying from COVID.
What about your vaccination, testing and masking programs? Are those still a mandatory thing?
No, unless you are a health care facility covered by the CMS directives, but to the extent your workforce is voluntarily using any of these programs, be ready to show that all of these policies are job-related and consistent with business necessity. And don't forget to enforce fitness for duty policies. The virus test is still considered a medical exam under the ADA – if you test one, test all, and be sure to pay for the testing as required by Oklahoma law.
Be wary of becoming an unsuspecting “do-gooder.” Employers often try to “help” people who they think are at greater risk of complications from COVID-19 based on an underlying health condition(s). Don't call people you think are unhealthy and ask if they really should return to work or continue to work. Simply because you know an employee has underlying condition(s) such as cancer, is a smoker, is immuno-compromised, or you think they aren't active enough or they need to lose a few pounds, is not enough to suggest an accommodation dialogue. Wait for them to ask.
Don't fret, do-gooders can still be proactive. The EEOC suggests employers keep educating their employees on the current COVID situation and let them know that they are still open to requests for accommodation for employees with a disability or a sincerely held religious belief. Let employees know that if they are concerned about a condition that makes them more susceptible to serious COVID complications, even if they don't have a disability, they should still contact you. And please don't let the boss' daughter's boyfriend who's working for the summer make these decisions; in order to support a grant or denial of an accommodation, the EEOC reminds us that the decision-maker must have a good and continuing understanding of the law.
Originally Published by The Journal Record on 5 August 2022
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