July 2022 COVID Testing and COVID Guidance from the EEOC
The various federal agencies finally seem to be reading from the same page when it comes to COVID-19. Absent some special circumstances, the federal Center for Disease Control (“CDC”) no longer recommends masking – whether outside or indoors – and social distancing is requested at places, but not required. The Equal Employment Opportunity Commission (“EEOC”) has recently declared that COVID-19 is no longer in the “emergency stage,” and therefore new guidance is in order for what steps employers should or shouldn’t be taking.
Our use of the permissive word “should” is intentional, because remember that the EEOC issues guidance not laws; that said, it is a best practice by employers to adhere to federal guidance as the EEOC does have the right to sue employers. With that in mind, we have condensed the EEOC’s dense legalese into the following summary that you can refer to the next time an employee notifies you of possible exposure or calls out of work due to a positive test.
First and foremost – now that, on paper at least, the “emergency stage” of COVID-19 is officially over – mandatory workplace testing is no longer permitted in all circumstances. Per the EEOC, since COVID-19 testing constitutes a “medical examination” under the Americans With Disabilities Act (“ADA”), all employer-mandated COVID-19 testing must be “job-related and consistent with business necessity.” If an employer cannot demonstrate both of these factors, mandatory COVID-19 testing is not permitted.
The EEOC references this language – “job-related and consistent with business necessity” at least nine times in its latest guidance, so that topic is worth exploring. Thankfully, for once the EEOC doesn’t leave us guessing. Per the latest guidance, “business necessity” means any of the following:
In compliance with any governmental edicts or guidance. Hypothetically, if tomorrow the CDC suddenly declared that employers should resume mandatory COVID-19 testing, then such testing would become a “business necessity” per se.
Based on likelihood of infection and transmission. To determine such likelihood, the EEOC instructs us to weigh the following factors: the level of community transmission; the vaccination status of employees; the accuracy and speed of processing various types of COVID tests; the degree of breakthrough infections among employees who are current on their vaccinations; the ease of transmissibility of the current variant; the possible severity of illness from the current variant; the types of contacts employees may have with others in the course of their work, and; the potential impact on operations if an infected employee enters the workplace. Unfortunately, the EEOC doesn’t offer any guidance as to how many of these factors must be present to meet the “business necessity” threshold, or whether any given factor is afforded more weight than any other.
If an individual is exhibiting symptoms in the workplace. Where an employer has a “reasonable belief” that an employee may be infected with COVID-19, testing becomes a “business necessity.” To be safe, employers should be prepared to articulate the basis of their belief, but anything along the lines of “they had a bad cough” should suffice.
From here, the EEOC distinguishes between “testing” – which, remember, is a medical examination under the ADA – and “screening,” which is not a medical examination, and therefore still generally permitted in all circumstances. Employers are free to inquire employees who are physically entering the workplace whether they are experiencing symptoms of COVID-19, and if so, whether they have been tested for COVID-19.
If an employer suspects an employee may be infected – see “reasonable belief,” above – the employer may ask that employee about their symptoms directly. If any of the aforementioned inquiries leads an employer to reasonably conclude that an employee has or may have COVID-19, or if the employee refuses to respond to such screening, that employee may be excluded from physically entering the workplace. However, the EEOC also stresses that employees who are excluded because they are experiencing symptoms must be provided the opportunity to work remotely if such is feasible. Employees who are excluded for refusal to cooperate with screening are not entitled to remote work.
Employers are also permitted to screen applicants for employment in the following circumstances:
After extending a conditional offer an employment. In this case, an employer may screen the applicant in the same fashion is the employer screens other employees in the position to which the applicant will be assigned.
Prior to extending a conditional offer an employment. In this case, the applicant may only be screened to the extent the employer screens all individuals entering the employer’s premises, including customers and visitors.
Employers may not rescind a job offer based on the applicant’s COVID-19 status unless they can demonstrate that the position requires an immediate start date, and that the position requires close proximity with others.
As to personal protective equipment (“PPE”), the EEOC still allows employers to require that employees use masks and barriers – provided that such is consistent with OSHA guidance - and that employers provide reasonable accommodations to employees who require either more or less PPE for a legitimate medical condition. The EEOC also stresses that delays in the “interactive process” process of seeking and providing a reasonable accommodation may no longer be delayed simply by citing the COVID-19 pandemic. Unless an employer can demonstrate “specific pandemic-related circumstances” which justify the delay, employers must address requests for reasonable accommodations pertaining to PPE – or indeed, to COVID-19 generally – on the same timeframe as any other request for accommodation. It’s worth reminding employers here that you absolutely are permitted to request documentation from an employee’s physician explaining exactly what accommodation the employee requires, and why such accommodation is necessary, no matter what the employee read on the internet about HIPAA.
Mandatory vaccination polices are still permitted insofar as the EEOC is concerned, but Florida-based employers would be wise to remember that Florida’s list of exceptions to such policies is exhaustive and varied such that anyone who truly wants an exception should be able to qualify for one. Non-health care employers with mandatory vaccinations policies who encounter objections from employees should consider seeking legal counsel before taking any substantive action. The EEOC also reminds employers that vaccination records are medical records, and therefore must be kept secure and separate from general personnel records and accessed only by those with a bona-fide “need-to-know.”
Finally, the EEOC recently settled a case brought under “The Genetic Information Nondiscrimination Act of 2008” (“GINA”), which affirmed that an employer had violated GINA by collecting its employees' family members' COVID-19 test results. Family medical history may only be sought when it pertains directly to an employee’s request for FMLA-leave; as to COVID-19, employers may only inquire whether they have had contact with anyone testing positive for or experiencing symptoms of COVID-19.
After several years of confusing – and often conflicting – regulatory guidance, federal agencies seem to finally be providing consistent guidelines to employers on issues surrounding the COVID-19 pandemic.
If you have any additional questions about COVID policies and testing, please don’t hesitate to reach out to us.