On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC” ), the agency that enforces anti-discrimination laws at the federal level, revised its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” Technical Guidance. We previously wrote about this Guidance as it related to COVID-19 vaccinations in a blog post found here. In this new Guidance document, the EEOC has significantly curtailed an employer’s broad discretion to require COVID-19 testing and specific return-to-work documentation. Read on to learn more.
Employer Not Automatically Permitted to Require COVID-19 Testing
Due to the EEOC’s Guidance, employers need to be more careful when requiring employees to test for COVID-19. The EEOC now requires employers that mandate COVID-19 testing for on-site employees to prove that the testing is a business necessity based on factors that include, but are not limited to, community transmission, workers’ vaccination status, the accuracy and speed of processing for different types of COVID-19 viral tests, the impact on operations if someone with COVID-19 enters the workplace, and other related factors. Previous EEOC Guidance allowed COVID-19 testing for on-site employees without any such considerations.
Employers Restricted from Obtaining Certain Types of Return to Work Documentation
The new Guidance also restricts the documentation that an employer may require to demonstrate that the employee is COVID-free. Because the Centers for Disease Control and Prevention (“CDC”) has concluded that antibody tests cannot determine whether an employee has an infection or is immune, employers may not require an employee to produce a positive antibody test to work on-site. Employers may, however, require that an employee provide a note from their healthcare provider that states that it is safe for the employee to return to the workplace after COVID-19 infection. Employers may also may offer incentives and bonuses for employees to receive COVID-19 vaccination, subject to certain guidelines.
Screening of Applicants Permitted After Conditional Job Offer
The EEOC’s Guidance also addresses when employers can require job candidates to test. Under the Guidance, employers may screen job applicants for COVID-19, as long as the screening policy is applied to all entering the workplace (employees, vendors, applicants, etc.) and the applicant needs to enter the workplace. That screening, however, is limited to the screening that others undergo pursuant to the policy. Further, an employer may screen an applicant for COVID-19 after they have been offered a conditional job offer. However, employers can only rescind a job offer to an applicant based on a positive COVID-19 test if the job requires an immediate start date; the CDC recommends the person not be in proximity to others; and the job requires proximity to others. If all 3 factors are not met, the employer may delay the start date but cannot rescind the offer.
No Entitlement to Family Members’ COVID-19 Test Results
The Guidance is not the only thing new at the EEOC. The EEOC recently settled a lawsuit that makes it clear that employers should also be careful about asking for COVID-19 tests from people with whom the employee has interacted. In the lawsuit and settlement, the EEOC made its position clear: employers cannot ask employees to provide COVID-19 testing results for family members without violating the Genetic Non-Discrimination Act of 2008 (“GINA”). GINA is a law that prohibits discrimination against employees and applicants based on genetic information. In a separate post, we will discuss GINA restrictions in more detail. For now, however, you should stop asking employees to prove family members are COVID-19 free.
Takeaways
With the EEOC posing more restrictions on COVID-19 screening , employers face new risks when trying to ensure workplace safety against COVID-19. The EEOC Guidance makes it clear that employers will have to take a more individualized approach to testing and screening requirements for their employees. Employers with questions should consult with legal counsel.