The EEOC guidance on COVID vaccines is now updated. On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic and vaccinations.
The updated EEOC guidance on COVID vaccines provides specific focus on viral testing and antibody testing.
EEOC Guidance on COVID Vaccines: Summary of Key Updates
Key updates to the EEOC’s guidance are summarized below:
- Limited Right to Test Employees. Employers may require employee’s to be subjected to a COVID-19 viral test when evaluating an employee’s initial or continued presence in the workplace. However, the right is not unlimited. The employer must be able to show the testing is job related and consistent with business necessity. According to the guidance, possible considerations in making the “business necessity” assessment 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. In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.
- Employers May Withdraw a Job Offer because the individual has tested positive for COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19. According the EEOC guidance, an employer should consult and follow current CDC guidance that explains when and how it would be safe for an individual who currently has COVID-19, symptoms of COVID-19, or has been exposed recently to someone with COVID-19, to end isolation or quarantine and thus safely enter a workplace or otherwise work in the physical presence of others. An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer if:
- The job requires an immediate start date
- CDC guidance recommends the person not be in proximity to others, and
- The job requires such proximity to others, whether at the workplace or elsewhere.
Given that for some individuals there may only be a short period of time required for isolation or quarantine, employers may be able to adjust a start date or permit telework (if job duties can be performed remotely).
- Employers May Require a Doctor’s Note. When an employee returns to the workplace after being out with COVID-19, employers may require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional. The EEOC guidelines also encourage employers to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation either in a timely manner or at all. This might include reliance on local clinics to provide a form, a stamp, or an e-mail to confirm that an individual is no longer infectious and is able to resume working.
- Employers may NOT require antibody testing before permitting employees top re-enter the workplace. An antibody testis different from a test to determine if someone has evidence of infection with SARS-CoV-2 or has COVID-19 (i.e., a viral test). An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace. Therefore, based on this CDC guidance, at this time such testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Thus, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Conclusion
It has been several months since the EEOC updated its guidance. The EEOC’s updated guidance on COVID testing provides helpful information for employers trying to navigate the challenges of returning employees to the workforce as positive cases spike. Employers may wish to review their current policies and procedures regarding COVID testing and keep up to date with CDC guidance.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
