On July 12, 2022, the EEOC issued additional guidance for employers regarding COVID-19 return to work issues. The guidance is helpful as it clarifies many common questions that employers have been faced with as employees have returned to the office over the last year. The guidance will also be helpful as COVID-19 and its many variants may spike in our communities, which may cause employers to pivot back to protocols to prevent the spread of COVID-19.
The most important change is the EEOC’s shift on mandatory COVID-19 testing of employees who are or will be in the workplace. At earlier points in the pandemic, the EEOC did not view mandatory testing to be a violation of the Americans with Disabilities Act (ADA). However, in light of the decline in COVID-19 cases across the country, the EEOC now states that employers may administer a mandatory COVID-19 test to employees only if it is “job-related and consistent with business necessity.” This standard is met if employers act consistent with current guidance from the CDC and other federal, state, and local public health agencies in light of current community transmission levels. Employers must also evaluate employee vaccination status, the transmissibility of a particular rising variant, and the type of contact employees have with others while at work. The guidance fails to provide any clear point upon which mandatory testing could be implemented. Instead, the only thing clear from this guidance is the directive that employers cannot simply continue a mandatory employee testing policy with no consideration for the state of the pandemic. Importantly, the guidance does makes clear that employers can continue to monitor and screen employees for COVID-19 symptoms and require employees to quarantine or work remotely if they are symptomatic or test positive.
The new EEOC guidance also addresses a number of other issues, including:
- Employers can still require employees to be vaccinated and boosted in order to come to the workplace, subject to religious and medical accommodations;
- Employers can require employees to provide a note from a medical professional that confirms they are safe to return to work after being infected with COVID-19;
- Employers cannot require employees to submit to antibody testing to enter the workplace as the CDC has deemed these tests to not accurately determine whether someone is currently infected; and
- The pandemic may temporarily excuse an employer from promptly responding to requests for reasonable accommodations under the ADA, particularly when a worksite reopens as there may be a substantial number of requests to respond to.
As the pandemic evolves, so too does the EEOC’s position on workplace COVID-19 policies. Nothing is static and employers must continue to be diligent in monitoring the ever-changing guidance from federal and state authorities, including the EEOC’s most recent guidance directing employers to monitor the spread of COVID-19 both nationally and locally. Employers must keep an eye on their workplace policies and practices and adjust them as necessary as we continue to live with some version of a pandemic in the years to come.