On July 12, the Equal Employment Opportunity Commission (EEOC) updated the guidance for employers regarding COVID-19 testing and other precautionary measures. The new guidance accounts for the evolution of the pandemic and clarifies what is “job-related and consistent with business necessity” in accordance with the Americans with Disabilities Act (ADA). More emphasis is now placed on businesses assessing current conditions and how they may drive the necessity for testing under different scenarios.
During the Application/Hiring Process
Employers may screen applicants entering the workplace only if testing is required of everyone entering the workplace. This can be done before an offer is made or can be part of a conditional job offer, but only if the policy is applied consistently to all employees of the same job type.
If an applicant tests positive, has COVID-19 symptoms, or has had a direct exposure, it is recommended that employers attempt to adjust the start date. An employer may withdraw the offer if:
- The job requires an immediate start date, or
- CDC guidance indicates the person should isolate or quarantine, and
- The job requires the employee to work within close proximity to others.
Prior to the revised guidance, it was determined that workplace testing was allowed, under the ADA, if it was administered according to CDC guidelines. The language has been revised to state that testing can only be required if the employer can show that it is “job-related and consistent with business necessity,” in accordance with the ADA’s definition. As such, temperature screenings or onsite testing may only be conducted if there is reasonable evidence that the employee may have COVID-19. Additionally, individuals may not be asked about COVID-19 symptoms or exposure unless the questions are asked of everyone entering the facility.
Information provided by the CDC, Food and Drug Administration (FDA), and local health departments can be relied upon to determine testing protocols, although that information changes often and should not be the sole factors in determining business necessity. It is advised that employers consider additional factors such as:
Community transmission levels.
- The employee’s vaccination status.
- The amount and type of contact the employee will have with others while engaged in work-related activities.
- The degree to which breakthrough infections are possible for those up to date on vaccinations.
- The ease of transmissibility and the possible severity of illness from the current variant(s).
- The impact on operations if someone enters the workplace with COVID-19.
This guidance only applies to COVID-19 viral testing. Antibody testing is not considered a business necessity, as that does not show if someone is currently infected with the virus or is at risk for reinfection.
Returning to Work Following Exposure
CDC and local health department guidance may be used to determine a safe return date following quarantine or isolation. A note from a medical professional is no longer included as a recommendation. This differs from prior guidance, where it was stated that a note from a medical professional could be required, under the ADA, and was considered justified as a business necessity.
COVID-19 Vaccination Requirements
Employers requiring vaccination may continue to do so without providing a general statement of business necessity; however, they should be able to support the requirement in cases where an exception is requested. It is still permissible to request supporting documentation from employees requesting an exception.
Employers may also continue to request proof of vaccination status and must ensure the confidentiality of the information. All related information should be maintained in a confidential location, away from other employment records. In addition, this information may only be shared with those who may need it for business reasons, such as:
- Administrative employees with recordkeeping responsibilities that include vaccination records.
- Employees responsible for providing facility access to individuals who have complied with the company’s requirements for vaccination status. Only the names of those not provided access should be disclosed.
- Compliance officers responsible for reviewing testing documentation.
The EEOC recognizes that the circumstances of the pandemic are no longer significant enough to cause a delay in accommodation determinations. Employers must now respond promptly to requests for accommodations. An increase in the number of requests for accommodation following an outbreak or business closure is not a sufficient reason to delay decisions.
Employers are also required to provide an accommodation to any employee who is unable to follow company indicated safety measures, such as hand washing or wearing Personal Protective Equipment (PPE), as long as the accommodation does not impose undue hardship, as defined by the Americans with Disabilities Act.
The new guidance does not prohibit employers from requiring vaccination, testing, or other safety measures to prevent the spread of COVID-19 in the workplace. It is intended to clarify that, due to changes in available resources since the onset of the pandemic, some situations that initially arose out of business necessity no longer pose the same level of risk. Employers are advised to evaluate current practices and policies to ensure compliance with the updated guidance.
For additional information on the new guidance or how to apply it in the workplace, contact the 24/7 HR Hotline at 866-HR-Hotline (866.474.6854) or [email protected].