On July 12, 2022, the EEOC updated its informal COVID-19 guidance to employers in a number of significant and surprising ways, most of which call for more nuanced assessment of community risk and consideration of evolving public health guidance:
- COVID-19 viral testing as a mandatory screening measure to allow workplace presence is permissible only if the screening is “job-related and consistent with business necessity,” because it constitutes an ADA medical examination. Testing will be deemed “consistent with business necessity” only when it is consistent with CDC, FDA, and/or state or local public health authority guidance at the time of testing.
- This is a significant change from the EEOC’s assessment at the start of the pandemic that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. Henceforth, employers will need to conduct an “individualized assessment” whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. 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 current on vaccinations/boosters, 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 (such as medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
- Unlike viral screening, which provides information on current infection status and risk of transmission of the virus to others, antibody testing is prohibited before permitting employees to enter or re-enter the workplace because antibody testing does not reveal current infection status or immunity to infection.
- Employers may continue to screen employees entering the workplace as to whether they have been diagnosed with or tested positive for COVID-19, and whether they have symptoms associated with COVID-19. Employers may also continue to screen job applicants for COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. Employers also may screen applicants in the pre-offer stage who need to be in the workplace as part of the application process if the employer screens everyone (e.g., applicants, employees, contractors, visitors) for COVID-19 symptoms. And employers may continue to exclude workers reporting symptoms, positive test results, or a recent diagnosis from the workplace because their presence poses a direct threat to the health or safety or others.
- However, under the amended guidance, employers may not pose screening questions to, or seek symptom or diagnosis-related information from, employees who are teleworking full-time without in-person interactions with customers or coworkers, as this medical inquiry is not consistent with business necessity.
Direct Threat Analysis
- Whereas the EEOC previously advised that an employer could fairly withdraw a job offer from an applicant with an immediate start date who has tested positive for COVID-19, has symptoms of the virus, or who was recently exposed to someone with COVID-19, the EEOC now advises employers to consult and follow current CDC guidance that explains when and how it would be safe for such individual to end isolation or quarantine and safely enter the workplace.
- An employer may withdraw a job offer 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, whether at the workplace or elsewhere. The revision is based on current CDC guidance that, for many individuals, “only … a short period of time [is] required for isolation or quarantine,” allowing employers “to adjust a start date or permit telework.”
- Similarly, an employer may not postpone the start date or withdraw a job offer because of concern that a candidate is older, pregnant, or has an underlying medical vulnerability putting them at greater risk due to COVID-19. Even well-meaning concern for the applicant’s well-being will not justify “otherwise unlawful discrimination” because of the applicant’s age, health, or pregnancy status. If the employer determines that an individual’s disability poses a “direct threat” by starting work immediately, it must still consider whether a reasonable accommodation can be provided to sufficiently lessen or eliminate any risks without causing an undue hardship.
- The EEOC reminds employers that “direct threat” “is a high standard,” and an affirmative defense that requires the employer to show the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health or safety, or that of others in the workplace, after an individualized assessment based on a reasonable medical judgment about this employee’s disability using the most current medical knowledge and/or on the best available objective evidence. An employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood the potential harm will occur, and the imminence of the potential harm, taking into account the severity of the pandemic in a particular area, the employee’s own health, and the employee’s particular job duties. The employer may also take into account the employee’s vaccination status, the likelihood of exposure at the worksite, and the availability and effectiveness of other measures such as mandatory physical distancing. Even if a direct threat exists, exclusion is not warranted unless and until reasonable accommodations have been ruled out after an interactive process with the employee, and after exhausting “creative and flexible” options such as enhanced PPE, additional or enhanced environmental protective measures (e.g., filtration, barriers), elimination or substitution of particular marginal functions posing higher risk, telework, modification of work schedules, relocating physical job location, leave, and reassignment.
- An employer may continue to require a note from a medical professional when an employee who has been absent due to COVID-19 infection seeks to return to work, indicating that it is safe for the employee to return. However, per the revised guidance, employers also may dispense with confirmation from a medical professional and instead follow CDC guidance on whether it is safe to allow an employee to return to work.
- Although the EEOC recognizes there may still be pandemic-related reasons for excusable delays during the disability-related interactive process, the agency also observes that many of those initial issues “may no longer exist.” In what appears to be a call to return to pre-pandemic processing time, an employer must show that specific pandemic-related circumstances justified a delay in providing a reasonable accommodation to which an employee is entitled, and even then use “interim solutions to enable employees to keep working as much as possible.”
- Guidance on reasonable accommodations from personal protective equipment (PPE) and other infection control practices has been updated. Now, when an employee with a disability needs a reasonable accommodation to comply with an employer’s requirement to wear PPE, the employer should discuss the request and provide accommodation if it does not cause an undue hardship on the operation of the employer’s business. In other words, the ordinary ADA reasonable accommodation standard applies, with no loosening of the standard due to the need for pandemic-related mitigation measures.
- An employee who requests a reasonable accommodation because he or she has one of the medical conditions the CDC says may put the employee at higher risk of severe illness from COVID-19 must let the employer know the employee needs a change for a reason related to a medical condition, either orally or in writing. The employer may then ask questions or seek medical documentation to determine whether the individual has a disability and if there is a reasonable accommodation available that can be provided without undue hardship. If the employer knows that an employee has one of these underlying conditions but he or she has not requested an accommodation, the ADA does not mandate that the employer take action in this situation.
- The EEOC continues to allow employers to require all employees to be vaccinated against COVID-19, subject to religious and disability reasonable accommodation obligations. To that end, the EEOC warns against vaccination requirements that may result in a disparate impact on employees based on race, color, religion, sex, national origin, age, disability, or genetic information. Although it does not add new restrictions to mandatory vaccination programs, the amended guidance warns that “[e]mployers 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.” The updated guidance reinforces the importance of keeping vaccination information confidential, sharing only what is needed (such as confirmation of employee vaccination status) with employees who need such information to perform their job duties and no more.
- If a mandatory employer vaccination program is applicable to all employees entering the workplace and an employee seeks an exemption based on disability, the employer may not require compliance with the safety-related qualification standard (here, mandatory vaccination) unless it can demonstrate the individual would pose a “direct threat” (under the high standard illustrated above) to the health or safety of the employee or others while performing their job, which cannot be mitigated by reasonable accommodation. The amended guidance again urges consideration of 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 in making this determination.
Although few of these updates announce major policy shifts, they underscore the deference the EEOC shows to the CDC and other public health authorities when considering the reasonableness of accommodations and direct of threat posed in the workplace. Employers are urged to make individualized assessments after review of current transmission rates and other risk factors before blithely denying requests for accommodation, barring workers from the workplace, withdrawing or delaying offers of employment, or barring applicants or employees from the workplace. The guidance also signals a gradual return to pre-pandemic standards, without the same deference to employer concerns about workplace transmission as the agency was willing to extend prior to the availability of at-home testing and widespread vaccination. It may not signal the beginning of the end of the pandemic, but may at least mark the end of the beginning.