The EEOC Updates Its COVID-19 and ADA Guidance Addressing Workplace Testing and Vaccination

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated guidance[1] concerning the interaction between the COVID-19 pandemic and the equal opportunity employment laws under its jurisdiction, including most notably the Americans with Disabilities Act (“ADA”).

The updated guidance revises the EEOC’s prior advice provided to employers on a number of important subjects. This Special Bulletin identifies and discusses the most significant of these updates[2], including the following subjects:

1. Mandatory COVID-19 testing;
2. COVID-19 testing and symptom screening of applicants for employment;
3. The rescission of job offers;
4. Mandatory COVID-19 vaccination policies; and
5. The sharing of information regarding employee vaccination status.

The purpose of this Bulletin is to assist employers in identifying changes to the law so that they may modify workplace health and safety policies, practices, and procedures in order to comply with the updated guidance.

While other entities such as the California Department of Public Health (“CDPH”) and the California Division of Occupational Safety and Health (“Cal/OSHA”) routinely update their regulations and standards to provide guidance on topics such as testing, close contacts, and isolation periods, the EEOC’s guidance is primarily concerned with ensuring that employers abide by the ADA and engage in legal workplace practices that do not discriminate against employees with disabilities. In other words, this EEOC guidance helps employers lawfully execute the workplace policies that are mandated and shaped by CDPH and Cal/OSHA regulations. This EEOC guidance also outlines related obligations such as disability accommodations and the interactive process.

COVID-19 Testing in the Workplace

COVID-19 Testing When Evaluating Employees’ Initial or Continued Presence In The Workplace

The EEOC revised the circumstances under which an employer may permissibly test employees for COVID-19.[3]

Previously, the EEOC permitted employers to conduct mandatory COVID-19 testing under all circumstances where the employer needed to evaluate an employee’s initial or continued presence in the workplace. The EEOC provided that such COVID-19 testing always satisfied the ADA standard that mandatory medical testing be “job related and consistent with business necessity.”

Now, the EEOC provides that COVID-19 testing no longer necessarily satisfies the “consistency with business necessity” criterion.[4] Instead, the EEOC provides that such testing satisfies that requirement only if the mandatory testing is consistent with guidance from Centers for Disease Control and Prevention (“CDC”), Food and Drug Administration (“FDA”) or state or local public health authorities.[5]

The EEOC provides that, in the event that an employer requires COVID-19 testing in a circumstance where such testing deviates from public health guidance, the employer must consider certain public health factors to determine whether such testing is “consistent with business necessity”. The EEOC provides the following eight (8) factors that employers should consider:

1. The level of community transmission;
2. The vaccination status of employees;
3. The accuracy and speed of processing for different types of covid-19 viral tests;
4. The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
5. The ease of transmissibility of the current variant(s);
6. The possible severity of illness from the current variant;
7. What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
8. The potential impact on operations if an employee enters the workplace with COVID-19.[6]

As a result, if an employer is going to require that its employees submit to COVID-19 testing, the employer should first consult with applicable guidance from the CDC, FDA, California Department of Public Health (“CDPH”) and the local county Health Officer or Department of Public Health. If none of these health authorities recommends COVID-19 testing in the circumstance under consideration, the employer should review the above enumerated factors before deciding whether to proceed with the testing or not.

COVID-19 Screening of Applicants

The EEOC also updated guidance concerning the screening of job applicants.[7]

The EEOC provides that an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, so long as the employer does so for all entering employees in the same type of job. The EEOC added that, if an employer screens everyone who enters the workplace for symptoms associated with COVID-19, the employer may permissibly screen pre-offer applicants who need to enter the workplace in order to complete their application for employment.

As such, if an employer is going to screen any job applicants for a position for symptoms associated with COVID-19, the employer should screen all applicants for that position in order to ensure a standard and uniform approach to such symptom screening.

Rescinding Job Offers

The EEOC updated its guidance to limit the circumstances under which an employer could permissibly rescind a job offer to an applicant who the employer needs to begin working immediately but who must either isolate or quarantine due to a COVID-19 case, symptoms associated with COVID-19, or a close contact exposure to someone with COVID-19.[8]

The updated EEOC guidance states that employers may only withdraw an offer if the employer is able to meet the following criteria:

1. The job requires that the employee start immediately;
2. CDC guidance recommends an individual in the applicant’s position not be in close proximity to others; and
3. The job requires that the employee in the position be in close proximity to others.

As a result of this limiting criteria, employers should generally seek to either delay the employee’s start date or allow the employee to telework if they are confronted with a prospective employee who is required to isolate or quarantine. Only if those options are unavailable, and the above three criteria can be satisfied, should an employer rescind a job offer.

Personal Protective Equipment

The EEOC updated its guidance concerning the use of personal protective equipment (“PPE”), such as face coverings.[9]

The updated guidance recognizes that employers may, at times, be subject to federal, state or local laws, including health orders, which will require employees to observe certain infection control practices, including the use of PPE, while at work.

The EEOC states that where such obligations exist, and when employees with a disability request a reasonable accommodation in order to comply with the infection control practices, the employer should engage the employees in the interactive process and provide such employees a reasonable accommodation that allows the employee to continue to perform their job duties, so long as doing so does not cause the employer an undue hardship.

Vaccinations

Mandatory Vaccination Policies

The EEOC reaffirmed with some minor clarifying revisions its prior guidance indicating that employers possess legal authority to implement mandatory vaccination policies.[10]

The EEOC provides that employers may require an employee who has a qualifying disability under the ADA to meet a universally applicable workplace COVID-19 vaccination requirement if the policy satisfies the “job related and consistent with a business necessity” standard as applied to that employee. This clarifies ambiguity in the prior guidance, which suggested that the policy must satisfy the standard when applied to all employees.

In light of this new clarification, employers may require compliance with a COVID-19 vaccination requirement so long as the policy requirement is consistent with business necessity. This will require a case-by-case analysis as to whether the requirements are appropriate for each position covered by the requirement. If a particular employee cannot meet such a COVID-19 vaccination requirement because of a disability, the employer must be able to demonstrate that the employee’s continued performance of their job duties would pose a “direct threat” to the health or safety of the employee or others.

Vaccination Information

The updated EEOC guidance also addresses when COVID-19 vaccination information can be shared.[11]

The ADA requires employers to maintain the confidentiality of employee medical information, but the guidance clarifies that information about an employee’s vaccination information may be shared with employees who need the information in order to perform their job duties, such as supervisory employees who may be expected to enforce certain workplace health and safety policies that are dependent on the employees’ vaccination status. In such a scenario, the employee receiving the information is required to maintain the confidentiality of such information.

As a result of this updated guidance, employers should store information about an employee’s vaccination status in a confidential file apart from their individual personnel file, akin to the storage of other medical and confidential information. This will ensure compliance with the Confidentiality of Medical Information Act, which requires employers to store medical information in a manner that preserves the confidentiality of such information.

Liebert Cassidy Whitmore attorneys are well-versed in the new EEOC guidance and are available to assist employers comply with these changes and achieve and maintain compliance.

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[1] The EEOC guidance, entitled “What You Should Know About COVID-19 and the [Americans with Disabilities Act], the Rehabilitation Act, and Other [Equal Employment Opportunity] Laws,” is available at the following web address: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[2] The following is a comprehensive list of the updates to the EEOC guidance as well as reference to the sections where such updates may be found in the guidance:

1. Employers are allowed to require a note from a medical professional explaining that it is safe for an employee to return to the workplace (Section A.5.);
2. Viral COVID-19 tests are a permitted form of screening, even when mandatory (Section A.6.);
3. Antibody COVID-19 tests are not a permitted form of screening (Section A.7.);
4. An employer may screen job applicants for COVID-19 (Section C.1.);
5. An employer may only withdraw a job offer in limited circumstances (Section C.4.);
6. An employer may not withdraw a job offer because the prospective employee is at increased risk for COVID-19 (Sections C.5., G.4.);
7. Delays during the interactive process are permissible but must be due to documented pandemic-related circumstances (Sections D.17., D.18.);
8. The EEOC has reaffirmed the importance of not engaging in unlawful disparate treatment based on protected characteristics (Section G.1.);
9. The EEOC recognizes that PPE may be required to be worn in the workplace, and reminds employers of their duty to engage in the interactive process as needed (Section G.2.);
10. The EEOC reminds employers of the employee process for requesting reasonable accommodations (Section G.3.);
11. The EEOC has added more guidance and examples of effective, reasonable accommodations (Section G.5.);
12. It is best practice to invite employees to request reasonable accommodations or work arrangement flexibility in advance of their return to the workplace (Section G.6.);
13. The EEOC reminds employers that the Age Discrimination in Employment Act (“ADEA”) prohibits employment discrimination against individuals 40 years old or older (Section H.1.);
14. Mandatory vaccination policies are still permissible (Sections K.1., K.5.);
15. The EEOC reminds employers that information about an employee’s COVID-19 vaccination is confidential medical information (Section K.4.); and
16. The ADA does not limit the value of an incentive to be offered to employees for voluntarily obtaining a COVID-19 vaccination. (Section K.16.)

[3] See EEOC guidance, Section A.6.

[4] Relatedly, requiring an employee to submit to antibody testing before entering the workplace, due to current CDC guidance, now unequivocally also fails to meet the “business necessity” standard and as such is not permitted. (EEOC guidance, Section A.7.)

[5] It should be noted that current CDC guidance recommends against using viral COVID-19 testing to end a COVID-19 case’s isolation and return to the workplace. Current California Department of Public Health (“CDPH”) and Cal/OSHA guidance allow for the use of testing after five days of isolation but do not require it. None of the three authorities suggest or require mandatory screening tests or tests to discontinue isolation or to continue their physical presence at the workplace. As such, it is likely that mandatory testing would not currently satisfy the “business necessity” component of the ADA standard. On the other hand, CDPH and Cal/OSHA (by virtue of CDPH) do recommend that close contacts test 3-5 days after their last exposure. CDC guidance recommends that unvaccinated close contacts are tested immediately after exposure and then, if negative, again 5-7 days after their last exposure. Because CDPH, Cal/OSHA, and the CDC, to an extent, recommend the testing of close contacts, it is more likely that mandatory testing of close contacts will meet the “business necessity” standard and thus be permitted.

[6] See EEOC guidance, Section A.6.

[7] See EEOC guidance, Section C.1.

[8] See EEOC guidance, Section C.4.

[9] See EEOC guidance, Section G.2.

[10] See EEOC guidance, Section K.5.

[11] See EEOC guidance, Section K.4.