During July 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance. Among other things, the updated guidance sets 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 always met 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 actually job related and consistent with business necessity. The business necessity standard is met only when the testing is consistent with current guidance from the CDC, FDA, or other state or local public health authorities. Accordingly, employers should stay up to speed on changes and developments from these other federal and state agencies. The EEOC guidance lists the following “possible considerations” when performing such assessments:
· Level of community transmission
· Types of contact employees may have with others in the workplace or elsewhere that they are required to perform work (e.g., working with medically vulnerable individuals)
· Vaccination status of employees
· Degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
· 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 apply to viral testing and not antibody testing. Requiring antibody testing is prohibited because it does not reveal current infection status or immunity.
Mandatory Vaccination 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 updated guidance provides several clarifications and warnings regarding vaccine mandates:
· Vaccine mandates may not result in a disparate impact on employees based on race, color, 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 the employee or others while performing their job, which cannot be mitigated by reasonable accommodation.
· 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 those employees who have a need to know the information to perform their job duties.
· Federal EEOC laws do not prevent employers from requiring documentation or other confirmation that employees are up to date on their vaccinations but may require exceptions to be made depending on the employee and accommodation requested.
Accommodations Related to PPE and other Infection Control Practices
While EEOC’s prior guidance stated that employers could require personal protective equipment (PPE) and other infection control practices, the updated guidance softens this by stating that employers may require PPE and other infection control practices “in most instances.”
However, employers must continue to provide disability-related or religious accommodations so long as such accommodations do not cause an undue hardship on the operation of the business. In essence, the ordinary ADA reasonable accommodation standard applies.
If an employee requests an accommodation based on a medical condition that the CDS recognizes as putting the employee at high risk of severe illness from COVID-19, the employee must inform the employer orally or in writing. The employer may ask questions or seek supporting medical documentation to determine whether the employee has a disability and then should provide a reasonable accommodation unless such accommodation would cause an undue hardship.
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 an employer has a policy to screen anyone who enters the worksite, they 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. And employers can withdraw a job offer when the applicant has COVID-19, or has been exposed to COVID-19, but only if: (1) the job requires an immediate start date; (2) current CDC guidance recommends the person not be in proximity to others; and (3) the job requires proximity to others.
However, 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) does not confer a right to reasonable accommodation due to age. Thus, reasonable accommodation considerations apply only if older workers have a medical condition that brings them under the protection of the ADA. Employers may voluntarily provide flexibility to older works, even if that results in younger workers being treated less favorably.
Delays in Reasonable Accommodation Process no Longer Permitted
The EEOC’s updated guidance warns employers that some of the unique issues created by the pandemic that impacted an employer’s ability to timely engage in the interactive process to provide reasonable accommodations have been resolved. A delay in providing reasonable accommodations will no longer be as easily justified.
This appears to be a return to pre-pandemic processing time, though an employer may still be able to show that specific pandemic-related circumstances justified a delay in providing accommodations.
The EEOC’s updated guidance reflects a growing return to pre-pandemic standards, showing less deference to employer concerns about workplace transmission. Certain workplace policies that employers previously implemented should be revisited and, if necessary, revised to comply with current EEOC guidance.
Andrew Alder is a shareholder in the Boise, Idaho office of Parsons Behle & Latimer. Mr. Alder possesses extensive civil litigation experience in a variety of areas, including employment, local government and municipality law, commercial litigation, personal injury and insurance litigation. He can be by calling 208-562-4900 or via email at aalder@parsonsbehle.com.
