Coronavirus (COVID-19), Diversity & Inclusion, HR Management & Compliance

Time to Revisit and Update Your COVID-19 Policies

During July 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance. The new standards set forth important updates and clarifications regarding COVID-19 testing, vaccine mandates, and disability and religious accommodations in the workplace. Employers should familiarize themselves with the new guidance and, if necessary, update their existing COVID-19 policies.

Testing in the Workplace

The EEOC’s prior guidance stated that conducting mandatory COVID-19 testing in the workplace alwaysmet the Americans with Disabilities Act (ADA) standard of being “job-related and consistent with business necessity.” The updated guidance now calls for a more nuanced assessment of community risk, stating that employers should perform individualized assessments to determine whether testing an employee is job related and consistent with business necessity.

The business necessity standard is met only when testing is consistent with current guidance from the Centers for Disease Control and Prevention (CDC), U.S. Food and Drug Administration (FDA), and other state or local public health authorities. Accordingly, employers should stay up to speed on changes and developments from these federal and state agencies.

The EEOC guidance lists the following “possible considerations” employers should keep in mind when determining if testing is a business necessity:

  • Level of community transmission;
  • Types of contact employees may have with others in the workplace (e.g., working with immunocompromised individuals);
  • Vaccination status of employees;
  • The possibility of breakthrough infections in fully vaccinated individuals;
  • Ease of transmissibility of the current variant(s);
  • Accuracy and speed of processing for different types of COVID-19 viral tests; and
  • Potential impact on operations if an employee enters the workplace with COVID-19.

The guidance further states that testing assessments only apply to viral testing and not antibody testing. Requiring antibody testing is prohibited because it doesn’t reveal current infection status or immunity.

Mandatory Vaccinations and Exemptions

The EEOC’s updated guidance continues to allow employers to mandate vaccination against COVID-19. It states that under the ADA, “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, if the standard is job-related and consistent with business necessity as applied to that employee.”

However, the guidance provides several clarifications and warnings regarding vaccine mandates:

  • Vaccine mandates may not result in different treatments of employees based on race, religion, sex, national origin, age, disability, or genetic information. Specifically, the updated guidance warns that “employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.”
  • Vaccine mandates are still subject to religious and disability reasonable accommodation obligations. If an employee seeks an exemption, the employer may not require vaccination unless it can demonstrate the individual would pose a “direct threat” to the health or safety of others while performing their job.
  • In determining whether there is a “direct threat,” employers should consider the level of community spread, the work environment, the frequency and duration of direct interaction with others, the degree of partially or fully vaccinated individuals in the workplace, whether routine screening testing is conducted, the availability of social distancing, and the use of masks and other risk mitigation measures.
  • Employers must maintain the confidentiality of employee medical information, but COVID-19 vaccination information may be shared with employees who need to know the information to perform their job duties.
  • Federal EEOC laws allow employers to ask for documentation or other confirmation that employees are up to date on their vaccinations, but exceptions may need to be made depending on accommodation requests.

PPE and Other Infection Control Practices

While the EEOC’s prior guidance stated that employers could require personal protective equipment (PPE) and other infection control practices, the new guidelines soften this by stating that it may require these practices “in most instances.”

However, employers must continue to provide disability-related or religious accommodations so long as they don’t cause an undue hardship on the operation of the business. In simpler terms, the ordinary ADA reasonable accommodation standard applies.

If an employee requests an accommodation based on a medical condition that the CDC recognizes as putting her at high risk of severe illness from COVID-19, she must inform her employer orally or in writing. It may ask questions or seek supporting medical documentation to determine whether she has a disability and should provide a reasonable accommodation.

COVID-19 Screening for Job Applicants

The updated guidance states that employers may screen potential new employees for COVID-19 during the job application process. If a company has a policy to screen anyone who enters the worksite, it must also screen job applicants.

Screening can also be done after an employer extends a conditional job offer, if such screening is done for all entering employees with the same job type. In addition, it can withdraw a job offer when the applicant has COVID-19, or has been exposed to COVID-19, but only if:

  • The job requires an immediate start date;
  • Current CDC guidance recommends the person not be near others; and
  • The job requires proximity to others.

The decision to postpone the start date or withdraw the offer may not be based on concerns about the individual being older, pregnant, or having an underlying medical condition. Relatedly, the updated guidance clarifies that the Age Discrimination in Employment Act (ADEA) doesn’t give a right to reasonable accommodation due to age. Because of this, reasonable accommodation considerations apply only if older workers have a medical condition that bring them under the protection of the ADA. Employers may voluntarily provide flexibility to older workers, even if that results in younger workers being treated less favorably.

Reasonable Accommodation Delays No Longer Permitted

The EEOC’s updated guidance warns employers that challenges presented by the pandemic are no longer excuses for delaying the reasonable accommodation process. This appears to be a return to pre-pandemic processing time, though employers may still be able to show that specific pandemic-related circumstances justified a delay in giving accommodations.

Bottom Line

The new guidance reflects a growing return to pre-pandemic standards and shows less deference to employer concerns about workplace transmission. Certain workplace policies that you previously implemented should be revisited and, if necessary, revised to comply with current EEOC guidance.

Andrew Alder is an attorney in the Boise, Idaho office of Parsons Behle & Latimer. He can be reached at aalder@parsonsbehle.com