With President Biden declaring “the pandemic is over,” the buzz of COVID-19 may be dropping, but the EEOC just keeps churning out COVID guidance. Earlier this summer, the EEOC updated a number of Q&As that employers should be aware of.
The biggest takeaway for employers is that mandatory viral screening testing is no longer automatically covered under the ADA’s medical examinations standard. Employers must now assess whether their mandatory testing policy meets the “business necessity” standard of the ADA. Factors for employers to consider include:
- Current guidance from the CDC, FDA and local health authorities
- Level of community transmission
- Vaccination status of employees
- Ease of transmission/severity of illness of the current variant(s)
- What types of contacts employees may have with others in the workplace
- The potential impact on operations if an employee enters the workplace with COVID
The EEOC also explained that employers are barred from requiring antibody testing to enter the workplace. According to the EEOC, since antibody testing doesn’t show whether an employee currently has COVID or whether they are immune, it does not meet the “business necessity” standard.
Separate from COVID testing, the guidance clarified other issues, including:
- Employers may require a doctor’s note explaining that employees who are returning to work after being out with COVID do not pose a transmission risk.
- Employers may screen applicants who have received a conditional job offer for COVID as long as they do so for all entering employees in the same type of job.
- An employer who needs to hire an applicant for a position immediately may revoke a job offer if the applicant (1) tested positive for, (2) has symptoms of, or (3) has been exposed to COVID, as long as the following circumstances are met:
- the job requires an immediate start date;
- CDC guidance recommends the person not be in proximity to others;
- the job requires such proximity to others.
StraightforWARD Legal Advice:
If there’s been any constant over the past two years, it’s the shifting sands of COVID-19 guidance and regulations. EEOC’s guidance, for example, has been updated more than 10 times since March 2020. It’s essential that employers’ policies reflect changing guidance, otherwise they risk a visit from the EEOC.