On July 12, 2022, the EEOC updated its COVID-19 guidance and, in doing so, changed many of its long-standing COVID-19 related policies. Here are the most prominent changes that an employer should know about.
Mandatory Employee Testing. The most notable change in the EEOC’s guidance is the heightened standard that an employer must meet if they want to require COVID-19 testing of its employees.
If an employer wants to require testing, it must show that it is (1) job related and (2) consistent with business necessity. Previously, there was a presumption that COVID-19 testing was job related and consistent with business necessity for any job. However, under this new guidance, employers will need to meet the “business necessity” standard in order to mandate testing. Some considerations employers should take into account to determine if they meet this new standard are: level of community transmission, vaccination status of employees, accuracy and speed of processing for different types of COVID-19 viral tests, etc. For a more complete list of considerations, see A.6 of the EEOC guidance here.
Requiring Compliance with a Mandatory COVID-19 Vaccination. Employers are able to put a mandatory COVID-19 vaccination policy in place. An employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, only if (1) the standard is job related and (2) consistent with business necessity as applied to that employee.
Denying Exemptions to a Mandatory COVID-19 Vaccine Policy. Suppose a particular employee cannot meet a safety-related qualification standard because of a disability. In that case, the employer may only require compliance if it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others while performing the job and that reasonable accommodation, absent undue hardship, would not reduce or eliminate that threat.
Direct Threat Analysis. A direct threat is a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. The assessment of a direct threat should take into account: the type of work environment (inside/outside), available ventilation, frequency and duration of direct interaction with other employees or non-employees, number of partially or fully vaccinated individuals already in the workplace, etc. For a more complete list of factors, see K.5 of the EEOC guidance here.
Reasonable Accommodation. If an employer finds that a particular employee would pose a direct threat, the employer must then determine if a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Examples of reasonable accommodations that could reduce a threat include: requiring the employee to wear a mask, working staggered shifts, permitting telework if feasible, reassigning the employee to a vacant position in a different workspace, etc.
Asking for Proof of Vaccination. Under EEOC guidance and other federal laws, employers may require employees to provide documentation or other confirmation of vaccination.
Pre-Offer Stage. Employers are able to screen applicants for COVID-19 in the pre-offer stage only if (1) the employer screens everyone, including visitors and others, for symptoms of COVID-19 before entering the workplace, (2) the applicant for employment needs to be in the workplace as part of the application process, and (3) the screening is limited to the same screening that everyone else undergoes.
Withdrawing Job Offers. An employer may withdraw a job offer because of a candidate’s exposure to COVID-19 only if (1) the job requires an immediate start date, (2) CDC guidance recommends the person not to be in proximity to others, and (3) the job requires proximity to others, whether at the workplace or elsewhere.
At the Workplace
Requiring Personal Protective Equipment (PPE). In most cases, employers may require employees to wear PPE (masks and/or gloves) and observe other infection control practices. However, this general rule is still subject to reasonable accommodations granted to employees with disabilities under the ADA or a religious accommodation under Title VII. An employer should provide a reasonable accommodation if it does not cause undue hardship to the operation of the employer’s business under the ADA or Title VII.
Excluding High-Risk Employees From the Workplace. ADA guidance does not generally allow employers to exclude employees from the workplace because the employee has a disability that the CDC has identified as “high-risk”. Excluding an employee for this reason is not allowed unless the employee’s disability poses a direct threat to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodation (see an explanation of the direct threat analysis above).
The EEOC’s changing guidelines reflect the ever-evolving state of the pandemic. An informed employer should take these new considerations into account whilst also keeping an eye out for any new updates provided by the EEOC.
If you have any questions on this topic, or need assistance in navigating the updated COVID-19 guidance, please contact our Labor and Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to keep up with the latest HR news, tips, and updates.