In Policy Pivot, EEOC Revises Pandemic Guidance To Move Away From A “Direct Threat” Analysis and Focus on “Business Necessity” As Employers Return Employees To The Workplace

Seyfarth Synopsis: On July 12, 2022, the U.S. Equal Employment Opportunity Commission issued updated guidance for employers on the interplay of workplace bias laws and COVID-19 workplace testing, vaccinations, and other return-to-work issues, including reasonable accommodations and access to employees’ confidential medical information.  Employers continue to face these issues as the workplace returns to some level of pre-COVID-19 normalcy.  Employers should be diligent in reviewing the updated guidance to ensure their policies and practices are compliant.

Introduction

The EEOC has once again updated its pandemic-related Technical Assistance guide for employers -- “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” (the “Guidance”) -- on the subjects of workplace testing and other return-to-work issues.  In this document, the EEOC has revised the Guidance in a manner that takes into account the current phase of the pandemic and employers’ renewed emphasis on returning to in-person or hybrid work. 

Workplace Testing

In the prior version of the Guidance, the EEOC took the position that screening testing was allowed under the ADA, even though COVID-19 viral tests qualify as medical examinations under the ADA, because “an individual with the virus will pose a direct threat to the health of others.”  The EEOC also stated in the prior Guidance that “[t]esting administered by employers consistent with current guidance from the Centers for Disease Control (CDC) will meet the ADA’s ‘business necessity’ standard.”

Now, in Section A.6 of the revised Guidance, the EEOC has removed the language stating that screening testing can be justified based on a direct threat analysis and replaced it with the statement that employers who want to conduct mandatory COVID testing for screening purposes will need to show that it is “job-related and consistent with business necessity” within the meaning of the ADA.

Although the Guidance states generally that employer use of a viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when consistent with guidance from the CDC, the Food and Drug Administration, and state and local public health authorities that is current at the time of testing, it also cautions employers that this guidance changes periodically.  In addition, the EEOC goes on to identify a number of considerations for employers to take into account in determining whether a business necessity justifies mandatory screening testing, presumably in the event the need for screening testing is not addressed by CDC, FDA, or local health authority guidance.  These factors include the level of community transmission, the vaccination status of employees, and what types of contacts employees may have in the workplace or work location.  The revised Guidance does not draw a distinction between screening testing required in the normal course and screening testing required of an unvaccinated person as an accommodation to a vaccine mandate.

Although some might view this change in approach to screening testing as setting a high bar for employers, the EEOC explains in its preamble to the revised Guidance that “[t]his change is not meant to suggest that such testing is or is not warranted; rather, [it] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

Employee Return to Work After COVID-19

In Section A.5., the EEOC clarified that when an employee returns to the workplace after being out with COVID-19, the ADA allows employers to require a note from a medical professional explaining that the individual is able to safely return to work.  The revised Guidance explains that this is permitted under the ADA because, even if requesting such a note is a disability-related inquiry, it is justified under the business necessity standard because it is “related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working.”  Alternatively, the Guidance provides that, instead of requiring such a note, employers may follow CDC guidance to determine whether it is safe for an employee to return to the workplace without a note from a medical professional.

Screening Applicants for COVID-19/Withdrawals of Offers

According to Section C.1. of the Guidance, if an employer screens everyone for COVID-19 before entry to the workplace (including employees, contractors, visitors, etc.), the employer can  screen an applicant who enters the workplace for an interview in the pre-offer stage in the same manner.  Otherwise, employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as they apply such policies consistently to all employees in the same type of job. 

Under the EEOC’s previous Guidance, if an applicant to whom the employer had extended an offer and who needed to start work immediately tested positive for or had symptoms of COVID-19, an employer was permitted to withdraw the job offer.  Now, revised Section C.4 of the Guidance provides that, if an applicant who needs to start work immediately and has been extended an offer tests positive for COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19, the employer may withdraw the offer only 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.  The EEOC advises in the revised Guidance that employers should also look to see if a start date can be adjusted before withdrawing an offer.

Reasonable Accommodations

Delays.  In the prior version of the Guidance, the EEOC essentially acknowledged that pandemic-related delays in responding to accommodation requests were an inevitable reality given the large-scale shutdowns in early pandemic days.  In Section D.17 of the revised Guidance, the EEOC now states, in yet another acknowledgement that the circumstances surrounding the pandemic are no longer as dire as they once were, that an employer will be required to show specific pandemic-related circumstances that justify a delay in providing a reasonable accommodation to which an employee was entitled.  Thus, although the EEOC acknowledges that ongoing developments in the pandemic may present additional delays in promptly responding to employee requests for accommodation and that reopening the workplace may result in a large number of such requests, it will not be sufficient for an employer to argue that any such delays were caused by general “pandemic-related delays” or “pandemic-related staffing issues.” 

Accommodations and PPE Policies.  The revised Guidance clarifies that, although an employer is generally permitted by federal EEO laws to require employees to wear personal protective equipment (PPE) and/or engage in other infection control practices, such as hand washing,  employers must provide accommodations under the ADA and Title VII, absent undue hardship, if employees cannot comply with these requirements.  In addition, in Section G.2 of the revised Guidance, the EEOC addresses the interplay between regulations issued by the Occupational Safety and Health Administration (OSHA) and the federal EEO laws.  The EEOC acknowledges that some employers may be required to comply with regulations issued by OSHA that require the use of PPE and that such OSHA regulations do not prohibit reasonable accommodations under ADA or Title VII -- as long as those accommodations do not violate OSHA requirements.  

COVID-19 Vaccinations

In the revised Guidance, while confirming an employer’s right to mandate the COVID-19 vaccine (subject to the reasonable accommodation provisions of the ADA and Title VII) and require proof of vaccination, the EEOC expands the scope of current confidentiality regulations related to the confidentiality of documentation or other confirmation of vaccination. 

In Section K.4, the EEOC reiterates its prior guidance that an employee’s COVID-19 vaccination status (or COVID-19 test results), like all employee medical information, must be kept confidential and separated from the employee’s personnel file under the ADA.  However, the revised Guidance states, for the first time, that an employer may share such confidential information with employees “who need it to perform their job duties.”  The revised Guidance provides examples of employees who need to access confirmation of vaccination of other employees:

(a) an administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination;

(b) an employee assigned to permit building entry only to those employees who are in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking). Such an employee may receive a list of employees who may or may not enter the workplace, but may not receive confidential medical information about why they are (or are not) on the list; and

(c) an employee tasked to ensure compliance with a testing requirement for employees who needs to review testing documentation submitted by those employees.

Employees who are given access to confidential medical information in order to perform their job duties must keep it confidential, and presumably it is the employer’s responsibility to see that they do.

Implications For Employers

The updated Guidance reflects that employers and employees alike will feel the impacts of the COVID-19 pandemic for the foreseeable future.  Employers need to review their current practices and policies regarding mandatory testing, screening, and/or vaccinations programs; collection of proof of vaccination and/or testing records; and their accommodation processes to ensure compliance with the updated Guidance. Indeed, it is best practice for employers to regularly check for updates from the EEOC and CDC, and to regularly review their practices and policies to ensure compliance. 

Please contact your Seyfarth relationship attorney or the authors of this blog for assistance.