New guidance narrows employers’ ability to screen employees.
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance and this article summarizes the key topics that employers should understand.
Return to Work Testing and Documentation
Under the Americans with Disabilities Act (ADA), any medical exam that an employer requires of an employee must be “job-related and consistent with business necessity.” Required COVID testing for employees is considered a “medical exam” and at the onset of the pandemic, the EEOC advised that COVID testing was a business necessity for all employees as an approved method for curbing transmission.
The July 12 guidance narrows what was a broad screening approach and now requires employers to assess whether screening a particular employee is consistent with the prior medical exam standard. The EEOC cautions employers to check with the public health authorities on screening guidelines, which will change depending on the level of virus detected in a particular region. Other factors that implicate “job-related” and “business necessity” include an employee’s vaccine status, the transmissibility of the current variant, contact between others in the workplace, and the impact of a COVID-positive employee on overall operations. In addition, the EEOC has updated its guidance to permit employees to provide an email from a medical provider or time-stamped documentation from a clinic indicating that the employee is at no risk for transmission, given that obtaining a doctor’s note can take a few days.
Screening Job Applicants
An employer may not screen an applicant for COVID-19 prior to making a conditional job offer, and may only screen applicants after making a job offer if it does so for other new employees with the same type of job. In terms of withdrawing a job offer, if the individual has to isolate due to COVID infection or exposure, employers are encouraged to be flexible with the start date; but if a job must start immediately, an employer may withdraw the 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.” The updated guidance cautions that an employer may not withdraw a job offer to a potential employee whom the employer regards as being at high risk of serious consequences were they to contract COVID-19, even if such concern is well-motivated.
The Interactive Process
Generally speaking, an employer must respond promptly to an employee’s request for a workplace accommodation. The EEOC recognizes that some delays may still occur due to the pandemic, but encourages employers to provide interim, reasonable accommodations to employees in order to keep them working. In other words, the pandemic should not be relied upon by employers as a blanket excuse to delay engaging in good faith dialogue with an employee to determine whether a workplace accommodation can be made that does not cause undue hardship to the employer.
Additional Return to Work Considerations
Employers are still entitled to require employees to wear personal protective equipment (PPE) and to exercise other infection control practices. Employees may still request exemptions from wearing PPE for medical or religious reasons and employers must engage in the interactive process with those employees to determine whether a reasonable accommodation can be granted. In addition, employers are cautioned against excluding an employee from the workplace even if the employer knows they are at high risk of serious consequences based on the employee’s health condition (as defined by the CDC) or are over 40 years old (the age threshold for discrimination claims), again, even if well-motivated by the employer. The EEOC reminds us that not everyone with a serious health condition considers themselves to be disabled or in need of a workplace accommodation. Unless the employer can demonstrate that an employee poses a direct threat to themselves or others in the workplace and no accommodation is available to mitigate the situation, an employer should think very carefully before excluding that employee from the workplace, even if the employee is unvaccinated.
The EEOC confirms that employers are legally permitted to require its workforce to be vaccinated against COVID-19, as long as the employer considers requests for exemptions based on medical conditions or religious beliefs and undergoes an individual analysis of each employee’s exemption request. The EEOC also reminds employers that as long as the employer is not administering vaccinations, it may provide relatively low-value incentives for employees to voluntarily vaccinate against COVID-19.
In this phase of the pandemic, the trend is toward refocusing workplace accommodations on an individual assessment of each applicant and employee’s circumstances, rather than relying on a more generalized (panic-driven) approach. The new normal is starting to look more like the old-normal.