United States: EEOC's New COVID-19 Guidance: Six Things To Review In Your Policies

The Equal Employment Opportunity Commission ("EEOC") promised to issue updated COVID-19 workplace guidance and delivered on that promise on July 12, 2022. The updated guidance addresses various aspects of COVID-19, and in some instances, revises prior guidance. Here are six key considerations regarding the updates:

1. New applicant COVID-19 screening guidance

The EEOC addressed for the first time when COVID-19 screenings can occur during the job application process, such as prior to an interview. If an employer screens everyone for COVID-19 before permitting entry to the worksite, such as employees, contractors, and visitors, they may also screen job applicants.

An employer may also screen job applicants after it has extended a conditional job offer if it does so for all entering employees with the same job type.

In addition, the EEOC expanded its guidance on when employers can withdraw job offers if an applicant has, or has been exposed to, COVID-19, stating that employers may withdraw the job offer if: (1) the job requires an immediate start date; (2) Centers for Disease Control and Protection ("CDC") guidance recommends the person not be in proximity to others; and (3) the job requires proximity to others, as long as the employer does not do so because an individual is older, pregnant or has an underlying medical condition.

2. Delays on reasonable accommodation process may no longer be justifiable

The EEOC recognizes in its updated guidance that the initial pandemic created unique issues that impacted an employer's ability to timely engage in the interactive process and to provide reasonable accommodations. The EEOC warns that some of the issues have since resolved. Therefore, a delay in engaging in the interactive process may not be as easily justified. However, the EEOC acknowledges there may be new issues that could have an impact on timing (e.g., higher number of accommodation requests due to reopening of a workplace).Employers who delay must show specific pandemic-related circumstances that justify the delay in providing a reasonable accommodation. Employers in such a position are also encouraged to use interim solutions when possible.

3. Age considerations clarified

The EEOC clarified that, unlike the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA") does not confer a right to reasonable accommodation due to age.Only if older workers have medical conditions that bring them under the protection of the ADA will reasonable accommodation considerations apply. However, the EEOC notes that employers are free to voluntarily provide flexibility to older workers, even if it results in younger workers being treated less favorably based on age. Notwithstanding this guidance, employers should keep in mind that some state laws provide protections to younger workers and such an approach may lead to state law liability.

4. COVID-19 testing in the workplace must be job-related, consistent with job necessity

The EEOC's prior guidance stated that conducting mandatory worksite COVID-19 testing always met the ADA standard (that any mandatory medical test be "job-related and consistent with business necessity").

The updated guidance has scaled back that statement and now requires that employers undertake individualized assessments to determine whether testing an employee for COVID-19 is job-related and consistent with business necessity. While there is no clear,bright line as to what meets this standard, the EEOC did list the following "possible considerations" employers may use when making the assessment:

• level of community transmission;
• types of contact employees may have with others in the workplace or elsewhere that they are required to perform work (e.g., working with medically vulnerable individuals);
• vaccination status of employees;
• degree to which breakthrough infections are possible for employees who are 'up to date' on vaccinations;
• ease of transmissibility of the current variant(s);
• possible severity of illness from the current variant(s);
• accuracy and speed of processing for different types of COVID-19 viral tests; and
• and potential impact on operations if an employee enters the workplace with COVID-19.

The updated guidance clarifies that this analysis only applies to COVID-19 viral testing and not to antibody testing (which the EEOC states is not permissible).

The EEOC continues to incorporate guidance from other agencies, stating that mandatory COVID-19 testing will meet the "business necessity" standard when it is consistent with current guidance from the CDC, Food and Drug Administration and/or state or local public health authorities but notes that each of those entities may periodically revise and update its guidance based on new information and changing conditions. Employers must remain vigilant of such changes.

5. Interplay between vaccination programs and disability exemptions clarified

The new guidance provides clarification as to the interplay between mandatory employer vaccination programs and employees seeking exemptions based on a disability.

Under the ADA, "an employer may require an individual with a disabilityto meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity as applied to that employee." The new guidance clarifies the approach an employer must take when an employee is unable to meet the standard. This is an area where employers are well served to work with legal counsel to address such programs and employee requests for accommodation.

The new guidance also states that federal EEOC laws do not prevent employers from requiring documentation or other confirmation that employees are up to date on their vaccinations; however, the law may require exceptions to be made depending on the employee and accommodation requested.

In addition, the EEOC provides further guidance as to when COVID-19 vaccination information can be shared.While the ADA requires employers to maintain the confidentiality of employee medical information, the EEOC clarified that such information may be shared with those employees who have a need to know the information to perform their job duties, a long-needed clarification.

6. PPE and other infection control practices in the workplace modified

The EEOC's previous guidance stated employers could require personal protective equipment ("PPE") and other infection control practices. The new guidance provides otherwise. The new guidance states that "[i]n most instances" the federal Equal Employment Opportunity laws will allow employers to require PPE and other infection control measures. Yet, the EEOC did not provide clarification on instances when such requirements may not be permissible.The guidance as to disability-related or religious accommodation requests remains the same - employers should discuss such requests and provide accommodations if it does not cause an undue hardship on the operation of the business.

The updated guidance additionally adds use of High-Efficiency Particulate Air ("HEPA") filtration systems and telework as examples of possible reasonable accommodations, which had not been included as examples in the previous guidance.

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