On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 testing and other issues related to COVID-19 and the workplace. These updates also covered the extent of necessary reasonable accommodations under prior guidance and parameters regarding mandatory vaccination programs.
The EEOC made the changes to cope with evolving circumstances as the pandemic wore on. However, this updated EEOC guidance on COVID-19 testing may mean that employers have to scramble to update their testing protocols and employee manuals that were carefully revised over the past few years in response to the COVID-19 health emergency.
New EEOC Guidance on COVID-19 Testing in the Workplace
Before July 2022, the EEOC’s guidance stated that mandatory worksite COVID-19 testing was automatically considered “job-related and consistent with business necessity” under the Americans With Disabilities Act (ADA). The new guidance states that employers will now need to assess whether testing is job-related and consistent with business necessity under current pandemic and individual workplace circumstances. If challenged, the employer should have evidence for why they chose to conduct COVID-19 testing in work.
The updated EEOC guidance on COVID-19 testing also clarifies that the employer’s analysis applies only to COVID-19 viral testing and not to antibody testing. Antibody testing can show only that a person has COVID-19 antibodies and cannot be used to diagnose an active infection. Therefore, as of July, the EEOC’s updated guidance confirms that workplace antibody testing would likely not constitute a business necessity.
How to Handle COVID-19 Screening During Hiring
In previous guidance, the EEOC advised that an employer may screen job applicants for symptoms of COVID-19. This was allowed if such screening was conducted after making a conditional job offer and as long as the employer did the same for all employees who had accepted the same type of job.
In the updated EEOC guidance on COVID-19 testing, the agency adds that if an employer screens everyone entering the worksite for COVID-19 symptoms before permitting entry, then an applicant who needs to be in the workplace may lawfully be asked to undergo testing. However, the screening must be limited to the same screening that everyone else undergoes.
Are COVID-19 Screening Tests in the Workplace Allowed?
Despite many changes, the EEOC did not ban COVID-19 testing in the workspace. Employers may still ask all employees who are physically entering the workplace if they have tested positive for COVID-19 or have COVID-19-type symptoms. Employers may still exclude individuals from entering the workplace based on their answers to those questions. Furthermore, if an employer wants to ask a single employee questions regarding COVID-19 symptoms or requests that the individual have their temperature screened, they may do so if they have a reasonable belief the employee has COVID-19. Similarly, if the employer singles out an employee for testing, the employer must have a reasonable belief based on objective evidence that the individual may have COVID-19. This guidance remains unchanged from the pre-July 2022 version of the EEOC’s advice to employers.
What Infection Control Practices Should You Consider?
In the updated EEOC guidance on COVID-19 testing, the agency also provides advice regarding when employers may require personal protective equipment (PPE) and other infection control practices. While previous guidance stated employers could definitely require such control measures, the updated guidance walked back that mandate, saying that the laws allow employers to require PPE and other infection control measures but cautioning that there may be times when such requirements may not be permissible (without providing examples). The guidance as to disability-related or religious accommodation requests remained the same—employers should discuss the request and provide accommodation if it does not cause an undue hardship on the operation of the business.
However, the updated guidance provided several examples of reasonable accommodations for those unable or unwilling to use or provide PPE, including installing additional high efficiency particulate air (HEPA) filtration systems and telework. These examples of possible reasonable accommodations had not been included in the previous guidance.
What Is the Guidance Regarding Vaccination Status?
The new guidance further clarifies differences between mandatory employer vaccination programs and employee requests for exemptions based on disability. Notably, the new guidance individualizes some of the EEOC’s previous guidance, making it easier for employers to demonstrate how their well-drafted, narrowly-targeted requirements can keep people safe. The updated EEOC guidance on COVID-19 testing now clarifies that the employer does not have to show that the vaccination requirement meets the ADA’s “business necessity” standard as applied to all employees, instead only as applied to the employee with a disability preventing compliance.
Asking For Documentation
The updated guidance regarding vaccination further states that where employers require mandatory vaccination, federal laws do not prevent employers from requiring documentation to confirm that their employees are up to date on their vaccinations. Instead, employees can request accommodations and exceptions to the rules under the law.
Sharing Vaccination Status Information
While the ADA requires employers to maintain the confidentiality of employee medical information, there are obviously exceptions to this rule, especially when public health is on the line. In the updated guidance from July 2022, the EEOC clarified that vaccination status information of employees may be shared with other employees who need it to perform their job duties. Examples include:
- A clerical employee assigned to provide extra PPE to unvaccinated employees;
- An administrative employee whose job is to record details of employees’ vaccination dates and dosages;
- A security guard who is allowed to permit entry only to employees in compliance with a mandatory vaccination and temperature check policy; and
- An IT employee is tasked with upgrading the at-home workstations of employees assigned to telework as a vaccine refusal accommodation.
In all circumstances, employers must still maintain confidentiality over the vaccine-status information. However, the updated EEOC guidance on COVID-19 testing clarified that these duty assignments would not be a violation of the law.
How Smithey Law Group LLC Can Help
At Smithey Law Group LLC, we’re a team of employment law lawyers who help our clients navigate the most challenging employment law problems in today’s workplaces. Attorney Joyce E. Smithey is a top employment litigator and negotiator in the Annapolis area and represents employers and employees throughout the Maryland and D.C. area. Contact the Smithey Law Group LLC today to arrange for a confidential consultation.