EEOC updates its COVID-19 guidelines to reflect the current state of COVID-19 in the United States

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As the pandemic continues to evolve, the EEOC guidelines are also evolving. On July 12, 2022, the EEOC again updated its COVID-19 guidelines: What You Need to Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws to reflect the changing state of the pandemic. Updated guidance follows CDC guidance from June 10, 2022 statements regarding the current status of the COVID-19 pandemic.

The COVID-19 pandemic has now moved into a new phase, due to the widespread adoption of highly effective COVID-19 vaccines, the availability of effective treatments, and the accumulation of high levels of vaccine-induced immunity. and infections at the population level. in the USA. Each of these measures has helped reduce the risk of serious illness and death in the United States.

Here are some highlights and observations from the updated EEOC guidelines, with graded sections.

Can employers still require COVID-19 tests? (A.6 and introduction)

“Yes, if the employer can demonstrate that it is job-related and consistent with business necessity.” According to the EEOC, a COVID-19 virus test is a medical examination under the ADA and an employer must show that it is “job-related and consistent with business necessity.” The EEOC explains that at the start of the pandemic, “the ADA standard for conducting medical examinations was, at the time, still being met for employers to perform workplace COVID-19 viral testing.” . Going forward, however, “employers will need to assess whether current pandemic circumstances and individual workplace circumstances warrant viral testing of employees to prevent transmission of COVID-19 in the workplace.” The EEOC stresses the importance of considering the most recent guidance from the CDC and lists the following “possible considerations” for employers conducting a “business necessity” assessment:

The EEOC also updated guidance on COVID-19 testing generally, reminding employers that all disability-related inquiries and medical examinations used to screen employees for COVID-19 must be “related employment and in accordance with the needs of the company”. (G.1)

Can employers require employees to provide a doctor’s note clearing them to return to work after being absent with COVID-19? (AT 5)

Under updated EEOC guidance, employers may require confirmation from a qualified medical professional that an employee who has had COVID-19 is safe to return to work.

The EEOC is also reminding employers of other options, including following CDC guidelines for determining whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional or “the Employers may wish to consider other means of determining the safety of allowing an employee to return to work if doctors and other medical professionals are unable to provide these documents in a timely manner or at all. [Alternatives] could include using local clinics to provide a form, swab or email to confirm that a person is no longer contagious and is able to return to work.

Can employers screen applicants for COVID-19? (C.1)

According to the EEOC, employers can screen applicants for COVID-19 during the pre-offer phase if the employer screens everyone, including visitors and others, for symptoms of COVID-19 before entering. in the workplace, the job applicant must be in the workplace as part of the application process, and screening is limited to the same screening that everyone else undergoes. This is important because under the ADA, disability-related medical investigations and examinations are generally prohibited before an employer makes a conditional offer of employment to an applicant.

Can employers withdraw job offers because of COVID-19? (C.4)

Under previous guidance, the EEOC said an employer may withdraw a job offer from a candidate with COVID-19 when that candidate is needed on-site immediately. The EEOC now advises that an employer can withdraw an applicant’s job offer because the individual tests positive for the virus, has symptoms of COVID-19, or has been recently exposed, if the three-way test following parts are met: (1) the job requires an immediate start date, (2) CDC guidelines recommend that the person not be in close proximity to others, and (3) the work requires such closeness to others, whether in the workplace or elsewhere. Given the current labor shortage and the CDC’s shortened quarantine and isolation periods, employers who have the ability may consider adjusting the start date or allowing candidates to work from home. who accept a position but contract COVID-19 before starting work. .

Can employers exclude high-risk employees from the workplace? (G.3, G.4, G.5)

According to the EEOC, “[t]The ADA generally does not permit the employer to disqualify the employee — or take any other adverse action — because the employee has a disability that the CDC identifies as potentially putting the employee at greater risk of serious illness if they contract COVID-19. The EEOC reminds employers that not all medical conditions that could put individuals at higher risk for complications from COVID-19 will automatically meet the ADA’s definition of a disability. Before taking any action when the employee is disabled, the employer must determine whether “the employee’s disability poses a ‘direct threat’ to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodations. »

Even if the employer determines that an employee’s disability presents a “significant risk of substantial harm to his or her own health or safety”, the employer cannot remove the employee from the workplace unless there is no reasonable accommodation that would “remove or sufficiently reduce” the threat to make it safe for the employee to return to work and perform the essential duties of the job. The updated guidance emphasizes that employers must first determine whether there are reasonable accommodations that would allow the employee to continue in their current position. The EEOC provides a number of examples of possible reasonable accommodations, including: adding air filtration measures such as High Efficiency Particulate Air (HEPA) filtration systems, modifying working hours, or telecommuting or leave of absence. In these latest guidelines, the EEOC explains that reassignment should be considered “as a last resort.”

Can employers exclude older workers who may be at high risk? (H.1)

Since the start of the pandemic, the CDC has indicated that older adults are most at risk of severe COVID-19. The Age Discrimination in Employment Act (ADEA) prohibits employers from excluding older workers (40 years and over) from the workplace, even if they are concerned about the health of the worker. employee. Unlike the ADA, ADEA does not provide employees with a right to reasonable accommodation. However, the EEOC also reminds employers that older workers may have disabilities that may entitle them to reasonable accommodations under the ADA.

Can employers share employee vaccination information? (K.4)

The EEOC has updated its guidelines regarding the confidentiality of information regarding employees’ COVID-19 vaccination status to identify the circumstances in which employers may share this information. According to the EEOC, employers can share confidential medical information such as confirmation of employee vaccinations or COVID-19 test results with employees who need it to perform their job duties, as long as those employees keep the information confidential. . The EEOC suggests several scenarios in which sharing this information may be appropriate:

  • An administrative employee assigned to maintain records of employee immunization documentation may be given necessary access to information for this purpose, but must keep such information confidential.
  • An employee responsible for allowing entry to the building only to employees who are complying with a work restriction, such as vaccinations, testing and/or masking for COVID-19, should only be given a list of people who may (or may not) enter, but no confidential medical information about why they are (or are not) on the list.
  • An employee charged with ensuring compliance with a testing requirement for employees should review the test documentation submitted by those employees, but must keep such test information confidential.

Can employers require disabled employees to be vaccinated? (K.5)

According to the EEOC, employers can require an employee with a disability to meet a qualification standard that applies to all employees, such as a safety-related COVID-19 vaccination requirement if the standard is job-related and consistent with business necessity as it applies to that employee. In the latest guidance, the EEOC clarifies that an employer does not have to demonstrate that a qualification standard, in this case a vaccination requirement, meets the “business necessity” standard as it applies. to all employees – only an employee who (a) has a disability and (b) informs the employer that a disability prevents compliance. If an employee cannot meet the vaccination requirement due to their disability, the employer can only require vaccination if the employee demonstrates a “direct threat”.

Keep in mind that employers may also have to provide accommodations to a mandatory vaccination program based on disability, sincere religious beliefs and, in some cases, pregnancy. Additionally, many states have passed laws that allow employees to be exempted from an employer’s mandatory vaccination policy.

What should employers do? The latest EEOC guidelines are a reminder that what made sense in 2020 or 2021 may no longer be in sync with the changing legal and pandemic landscape. While the EEOC continues to affirm that the EEO laws do not interfere with or prevent employers from following current guidelines and suggestions made by the CDC and public health authorities on the measures that employers should take to prevent the spread of COVID, these guidelines have changed since the start of the pandemic. Employers should therefore reassess their COVID-19 practices to ensure they are legally compliant with evolving federal and state laws reasonably necessary to minimize the spread of COVID-19 in the workplace and make sense for operations. commercial.

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