The Equal Employment Opportunity Commission (EEOC) has recently updated its COVID-19 guidance for employers. The updates reflect a broader understanding of how COVID-19 has evolved and takes into greater consideration evolving public health guidance.
While none of the updates constitute major policy changes, they do make clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. Employers making testing decisions are encouraged under the new guidelines to take into consideration various factors such as community transmission levels and types of contacts between employees and others in the workplace. This shift acknowledges that evolving pandemic circumstances will require individualized assessments by employers when determining whether testing is warranted consistent with the requirements of the ADA.[i]
Some key changes to the EEOC’s What You Should Know About COVID-19 and the ADA Technical Assistance FAQs include:
Disability-Related Inquires and Medical Exams:
- An employer may, as a mandatory screening measure, administer a COVID-19 viral test[ii] when evaluating an employee’s initial or continued presence in the workplace if the employer can show testing is job-related and consistent with business necessity.
- On the other hand, under the EEOC, antibody testing is considered a “medical examination under the ADA.” Coupled with CDC guidance providing that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; antibody testing should not be used to determine whether an employee may enter the workplace as it does not (for the reasons stated) meet ADA’s “business necessity” standard.
Hiring and Onboarding
Employers may continue to screen job applicants and employees, but must keep in mind the following:
- An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
- If an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the workplace, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.
Employers should remember that this type of screening is limited to the same screening that everyone else undergoes; employers going beyond will be considered to have engaged in an illegal pre-offer disability-related inquiry and/or medical examination under the ADA.
Other areas impacted by the updates include reasonable accommodation, return to work protocols and vaccinations.
The EEOC’s shift in focus to individualized assessments, current transmission rates and other risk factors seems to reflect a return to pre-pandemic standards, but with a better overall understanding of the challenges faced and lessons learned (by the agency and employers) during the COVID-19 pandemic.
Employers with questions about COVID-19-related testing, reasonable accommodation and return to work protocols should contact Western Growers.