Preventing and containing Covid-19 outbreaks in the workplace has become routine for employers over the course of the past two years. Updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC) provides employers with a better understanding of when to test employees. 

Previously, employers could require on-site Covid-19 testing of employees at their discretion. However, on July 12, 2022, the EEOC updated a number of its Covid-19-related Q&As, which address several issues, most notably providing a new standard for employers who screen/test employees for Covid-19. 

Several of the significant updates include the following:

New Standard – Screening/Testing of Employees for Covid-19

Under the updated guidance, an employer can administer viral screening/testing of employees if the employer can show it is (1) job-related and (2) consistent with business necessity. See QA.6. 

What factors are considered?

Possible considerations in making the “business necessity” determination may include:

• The level of community transmission;
• The vaccination status of employees;
• The accuracy and speed of processing for different types of Covid-19 viral tests;
• The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
• The ease of transmissibility of the current variant(s), the possible severity of illness from the current variant;
• 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 
• The potential impact on operations if an employee enters the workplace with Covid-19.  

How can employers meet this standard?

An employer’s use of a Covid-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities, current at the time of testing. See QA.6.

So, viral testing may be allowed, but what about antibody testing?

The updated EEOC guidance references current CDC guidelines and advises antibody testing does not meet the standard of “business necessity” for medical examinations or inquiries of employees because it may not show whether the an employee has a current infection or is immune to infection. Thus, requiring antibody testing before allowing employees to re-enter the workplace is not allowed. See QA.7. 

Screening/Testing of Applicants for Covid-19

The updated guidance clarifies that employers may test applicants for Covid-19, after making a conditional job offer, as long as they do so consistently for all entering employees in the same type of job. See QC.1. The screening/testing of applicants, like the screening/testing of employees, is permissible if the screening/testing is (1) job-related and (2) consistent with business necessity. 

Can an employer withdraw a job offer if the applicant tests positive for Covid-19, has symptoms, or has been recently exposed? 

A job offer can only be rescinded if (1) the employee needs to start his or her employment immediately and (2) the employee will either be working in the presence of others or on-site. Current CDC guidelines should be evaluated prior to making this decision.

An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer if (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. See QC.4. 

In any event, employers must consider accommodation obligations and current CDC guidance before making a decision.

What if the applicant may have an increased health risk from Covid-19?

An employer cannot postpone the start date or withdraw an offer because of a concern the applicant may have an increased health risk from Covid-19. See QC.5. 

Return to Work

While employers can require a note from a qualified medical professional explaining it is safe for the employee to return to work, the updated guidance also encourages employers to follow CDC guidance and consider other practical ways to determine when it is safe to allow employees to return to work, without requiring such a note. See QA.5. 

Mandatory Vaccination Policies

The updated guidance reminds employers of important information regarding mandatory vaccination policies.

Employers may require all employees to be vaccinated against Covid-19, subject to Title VII and ADA provisions. If an employer has such a policy in place, the employer may require documentation or other confirmation that employees are up to date on their vaccinations, subject to Title VII and ADA exceptions. See QK.1. 

It is important to note employee vaccination status is considered confidential medical information under the ADA and as such, employers must keep their employees’ vaccination information confidential and store such information separately from their personnel files. See QK.4.

Takeaways

The EEOC’s updated guidance provides assistance to employers as they continue to navigate Covid-19 in the workplace.    

Going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of Covid-19. 

If you have any questions about this Legal Update, please contact Attorney Joel Aziere at jaziere@buelowvetter.com or (262) 364-0250, Attorney Kirstin Mathers at (262) 364-0251 or kmathers@buelowvetter.com, or your Buelow Vetter attorney.