As everyone knows, the sequel is almost always messier than the original. Guidance from the Equal Employment Opportunity Commission (EEOC) is no exception. On July 12, the EEOC updated its COVID-19 guidance, taking already complicated guidance that had no clear direction and making it worse with increased reliance on shifting public health standards.
Public Health Agencies and COVID-19 Processes
The EEOC specifically states that employers should look to the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and other public health agencies when assessing COVID-19 processes. Oddly, however, it leaves the Occupational Safety and Health Administration (OSHA) out of its list, even though the administration has been active in setting COVID safety guidance for employers.
This doesn’t mean that OSHA won’t govern employer requirements, just that there may be issues with how each agency’s expectations overlap. Employers have seen this before in the EEOC and the National Labor Relations Board’s (NLRB) conflicting opinion letters and decisions regarding handbooks and confidential information.
It’s important to note that the EEOC rules remain highly industry specific. Healthcare and other high-contact industries remain subject to other more restrictive COVID requirements (either under federal rules or state law), such as the vaccination and masking rules communicated by the Centers for Medicare and Medicaid Services (CMS) for many healthcare entities.
Changes in the questions and answers issued by the EEOC include testing, onboarding, withdrawing job offers, and personal protective equipment (PPE).
Doctor Notes and Testing
Question A.5 of the new guidance covers information you may request from employees before they return to work following a COVID diagnosis. You may request a medical provider’s note, or you can follow CDC guidance to determine when employees may return and if they should mask indoors.
The EEOC specifically directs employers to changes in Question A.6, which discusses when you may require a COVID test. The agency states that this is permissible if you can show the test is job-related and “consistent with business necessity.” This, as many employers know, can be a fluid standard depending on the individual EEOC evaluator. For example, since testing employees for diseases (such as TB) in healthcare is very common, most healthcare agencies will meet this “business necessity” requirement.
In assessing business necessity, absent a statutory mandate, the EEOC looks to:
- The level of community transmission;
- Employee vaccination status;
- Current science or likelihood of breakthrough infections and if current circulating variants are highly transmissible;
- The severity of the current variant(s);
- The nature of the industry and the job’s ongoing COVID exposure risk (such as significant public contact, close quarters, etc.); and
- Special issues, such as working with those at high risk.
This multifaceted analysis complicates the employer evaluation, and we suggest that you seek the advice of legal counsel before implementing any program.
Hiring and Onboarding
The EEOC updated the answer to Question C.1 of its guidance, which continues to state applicants who have received a conditional job offer may be screened for symptoms of COVID-19.
This is only acceptable, however, if all employees in the same type of position are also screened. The EEOC’s answer also notes that preoffer applicants may be screened for symptoms if you are consistent in screening all persons who enter the workplace.
Withdrawing a Job Offer
One question that has come up is whether you can withdraw a job offer if the start date would have to be delayed due to a recent COVID-19 infection. In Question C.4, the EEOC refers employers to the CDC guidance for quarantines and other limitations. It states that if “(1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere,” then the offer may be withdrawn.
You clearly need to consider several factors before deciding to withdraw any offers, including how long it would take to find another candidate to fill the position. If the employee’s start date is delayed by two weeks because of the virus, but it takes six weeks to fill the position, that might be used in an EEOC claim.
PPE Requirements and Accommodations
For employers who require PPE such as masks, gloves, or face shields, the EEOC reaffirms that any request for accommodation is part of the reasonable assessment process and that you aren’t required to violate OSHA requirements as part of an accommodation. More information on this can be found in Question G.2 of the guidance.
The real issue you will need to assess with legal counsel is when you should put certain safety requirements in place for employees to meet OSHA’s ever-expanding general duty clauses.
For screening, analysis, and critical accommodations, the EEOC has complicated matters by directing employers to refer to CDC guidance and current science.
It doesn’t look like employers will be able to delete the public health links they have been checking throughout the pandemic, which makes it more important to seek legal counsel when attempting to develop programs or updated policies.
Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines. You can reach her at email@example.com.