On July 12, 2022 the Equal Employment Opportunity Commission (EEOC) issued updated Guidelines governing COVID-19 testing of employees. Employers that continue to test workers for COVID-19 should review their policies to ensure they comply with these updated guidelines. Previously, the EEOC allowed employers broad latitude to screen workers for COVID-19 without running afoul of the Americans with Disabilities Act (ADA), given the pandemic’s impact on work places. In its revised Guidelines, however, the EEOC says that while employers can continue to administer COVID-19 tests as a condition of entering a worksite, they must be able to show that the testing practices are job-related and consistent with business necessity. The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees to prevent workplace transmission of COVID-19.”
Mandatory COVID-19 Screening is Still Permissible Under Certain Circumstances
Under the ADA, a COVID-19 viral test is considered a medical examination, which means an employer that requires such testing for employees to enter or remain onsite must ensure that COVID-19 testing is “job-related and consistent with business necessity.” A medical examination may be job-related and consistent with business necessity when objective evidence shows that the employer reasonably believes that either the employee’s ability to perform essential job functions will be impaired by a medical condition or the employee will pose a “direct threat” – meaning a significant risk of substantial harm – to themselves or others.
In the EEOC’s latest guidance, the agency listed the factors employers should consider when evaluating whether its testing program is job-related and consistent with business necessity: community transmission levels and the transmissibility of current COVID-19 variants, the accuracy and speed of processing different types of COVID-19 viral tests, as well as employees’ vaccination status, working conditions, and the potential impact of positive cases on operations.
Employers should also regularly review guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and state and local public health authorities because “CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations based on new information and changing conditions.”
Antibody Tests Are Not Permitted as a Condition for Re-Entering the Workplace
Antibody tests are still not considered a good measure of whether an individual has a current COVID-19 infection and should not be used to determine whether an employee can return to the workplace. While a viral test detects whether someone is infected with SARS-CoV-2 (the virus that causes COVID-19), an antibody test measures proteins, which may indicate if an employee had a past infection or some other illness or infection.
COVID-19 Screening Questionnaires Are Generally Permitted for Non-Remote Employees
Employers are still allowed to ask all employees who are physically entering a worksite if they have COVID-19 symptoms or have been diagnosed with or tested positive for COVID-19, according to the EEOC. Symptoms include fever, chills, cough, and shortness of breath.
According to the EEOC, Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to the health and safety of others. However, employers generally cannot screen employees who work remotely or otherwise do not have in-person contact with co-workers, customers, or other business partners.
Requiring ‘Return-to-Work’ Confirmation from a Medical Professional
If employees miss work because they tested positive for COVID-19, they can be required to provide a note from a qualified medical professional confirming that they may safely return to the worksite and are able to perform their job duties. However, such a note is not required. Instead, Employers may opt to follow the latest CDC guidance or the applicable state or local public health guidance to determine whether an employee can safely return to the workplace once they have met isolation or quarantine criteria.
The EEOC explained that requesting confirmation from a qualified medical professional is permitted under the ADA for two reasons. First, COVID-19 is not always considered a disability, so a request for confirmation may not be a disability-related inquiry. Second, if the request is considered a disability-related inquiry, it would meet the ADA’s requirement to be job-related and consistent with business necessity due to the risk of COVID-19 transmission in the workplace and objective concerns about the employee’s ability to return to work.
Screening Job Applicants for COVID-19 Symptoms
Under the EEOC’s updated Guidance, employers may screen individuals with job offers for COVID-19 symptoms before they start work, so long as they are consistent. Such screening may be done after making a conditional job offer if the employer screens all employees in the same type of job who are entering the worksite. Additionally, employers may screen job applicants who come onsite as part of the interview process if the policy is to screen everyone who enters the worksite, such as job applicants, employees, contractors, and visitors.
“The screening is limited to the same screening that everyone else undergoes,” the EEOC explained. “An employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination.”
Carefully Consider the Circumstances Before Withdrawing a Job Offer
If a new hire tests positive for COVID-19, has symptoms, or has recently been exposed, and must report to a worksite or would otherwise be in the physical presence of others, employers may be able to withdraw the job offer in some circumstances.
Employers should review and following current CDC guidance that outlines when and how the worker can safely end isolation or quarantine, enter a worksite, or work in the physical presence of others. The EEOC said employers may withdraw a job offer if:
The EEOC noted that the isolation or quarantine period may be short for some workers, and therefore, employers may be able to briefly delay the start date or allow the new hire to telework if the job duties can be performed remotely.
The rules and government guidelines regarding the COVID-19 situation are rapidly changing and developing. Schwartz Rollins LLC is monitoring these changes and will continue to provide updates as we deem appropriate. This information is not intend to be, and should not be construed as, legal advice for any particular fact situation. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.