The EEOC Updates Its COVID Guidance for Employers – Testing, Accommodations, Direct Threat and More
By Fiona W. Ong - Shawe Rosenthal LLP
July 15, 2022
I know we’re all tired of COVID-19, and many of us are just pretending that life has returned to normal. But, just as the darned variants continue to evolve, so does the Equal Employment Opportunity Commission’s What You Should Know About COVID and the ADA, the Rehabilitation Act, and Other EEO Laws guidance. Last week, the EEOC updated a number of its Q&As, with some more targeted guidance for employers. Of particular interest (at least to this management-side attorney) are the newly-identified factors that employers should consider to establish a business-necessity for viral testing and those that are relevant to the direct threat assessment. Here’s our summary of most of the updated questions:
• Employers may require an employee with COVID to provide a note from their doctor releasing them back to work. (The EEOC notes that employers can also follow CDC guidance regarding release from isolation without a doctor’s note.)
• Employers may only use a viral test as a screening measure to evaluate an employee’s initial or continued presence in the workplace if it is job-related and consistent with business necessity. Possible considerations in making the “business necessity” assessment include:
• the level of community transmission,
• the vaccination status of employees,
• the accuracy and speed of processing for different types of COVID-19 viral tests,
• the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations,
• the ease of transmissibility of the current variant(s),
• the possible severity of illness from the current variant,
• what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and
• the potential impact on operations if an employee enters the workplace with COVID-19.
• Employers may not require antibody testing (which only shows past and not current infection) before permitting employees to re-enter the workplace.
• Employers may screen applicants for symptoms of COVID (e.g. testing, questions, temperature checks, etc.) as long as the screening follows a conditional job offer and the employer is doing so for all entering employees in the same type of job, or if the employer is screening everyone (employees, contractors, visitors) before permitting entry to the workplace.
• An employer may withdraw a job offer to an applicant with COVID/COVID symptoms/recently exposed to COVID 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.
• An employer may not withdraw a job offer to an individual who is older/pregnant/disabled based on concerns of their increased risk of serious illness from COVID.
• An employer may need to provide reasonable accommodations to personal protective equipment (PPE) requirements for employees with disabilities or religious conflicts if the accommodations do not impose an undue hardship. The employer should engage in the interactive process following any request for accommodation.
• If an employee with an underlying medical condition that places them at greater risk of serious illness from COVID has not requested accommodation, the employer need not offer an accommodation. In addition, the employer should not exclude the employee from the workplace or take other adverse action against the employee – unless there is a direct threat to the employee’s health or safety (see below for more on direct threat) and there is no reasonable accommodation that will reduce the risk to an acceptable level.
• The EEOC updated its ideas for accommodations that may eliminate or reduce any direct threat to an employee’s or others’ safety to an acceptable level, and encourages employers to be “creative and flexible”:
• additional or enhanced protective gowns, masks, gloves, or other gear beyond the norm,
• High Efficiency Particulate Air (HEPA) filtration systems/units or other enhanced air filtration measures,
• erecting a barrier that provides separation between an employee with a disability and coworkers/the public,
• increasing the space between an employee with a disability and others,
• elimination or substitution of particular “marginal” (non-essential) job functions,
• modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting),
• moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more physical distancing).
• While asserting that vaccination information is confidential medical information, the EEOC identifies certain employees who may access such information in order to perform their job duties:
• An administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination
• An employee assigned to permit building entry by employees in compliance with a work restriction such as vaccination/testing/masking
• An employee tasked to ensure compliance with a testing requirement
• An employer can refuse a request for medical exemption only if there is a direct threat. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge can include the level of community spread at the time of the assessment, as well as statements from the CDC and information from the employee’s health care provider.
• Additionally, the assessment of direct threat should take account of the type of work environment, such as:
• whether the employee works alone or with others or works inside or outside;
• the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees;
• the number of partially or fully vaccinated individuals already in the workplace;
• whether other employees are wearing masks or undergoing routine screening testing; and
• the space available for social distancing.
• The employer must consider reasonable accommodations to reduce or eliminate the threat, such as requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.
As COVID and governmental guidance continue to change, we will (as always) keep you updated on the developments!
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