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    COVID-19 Equal Employment Guidance Evolves with Pandemic

    • Published
    • 22 July 2022
    • Category
    • General

    The Equal Employment Opportunity Commission (EEOC) recently updated its guidance on COVID-19 screening and testing. The EEOC is the federal agency responsible for enforcing the Americans with Disabilities Act (ADA), Rehabilitation Act and other equal employment protections.

    The EEOC states that it has adjusted its guidance to reflect “evolving pandemic circumstances.”

    Screening

    According to EEOC guidance, employers may screen employees entering the workplace to determine whether they have symptoms and ask if they have been tested for COVID-19. They may also screen job applicants for COVID after making a conditional offer as long as screening applies to all candidates for the same position.

    Under the ADA, employers are allowed to exclude employees from the workplace if they have COVID symptoms, positive test results or a recent diagnosis because their presence would pose a direct threat to the health and safety of others. However, employers may not ask remote (telehealth) workers screening questions or seek symptom- or diagnosis-related information. That type of medical inquiry is not considered to be consistent with business necessity because employees who don’t see co-workers and customers in person do not pose a direct threat.

    Testing

    At the outset of the pandemic, the EEOC found that employers could conduct worksite COVID-19 viral testing to screen for infection in compliance with ADA medical exam standards. As of July 12, 2022, employers must now assess whether current pandemic and individual workplace circumstances justify viral testing of employees to prevent workplace transmission of COVID-19.

    In its guidance, the EEOC says this change is not meant to suggest that viral testing is not warranted. Instead, the revised guidance acknowledges that evolving pandemic circumstances require employers to conduct individualized assessments to determine whether testing is needed and, if conducted, would be consistent with ADA requirements.

    Further, the EEOC has clarified that mandatory COVID-19 viral testing of employees is only allowed when it is job-related and consistent with business necessity. When making a business-necessity assessment, employers may consider factors including:

    • Current level of community transmission and workplace exposure risk
    • Vaccination status of employees
    • Accuracy and speed of processing for different types of COVID-19 viral tests
    • Degree to which break-through infections are likely to occur among vaccinated employees
    • Projected severity of illness from predominant variants
    • Types of contact employees may have with others while working
    • Potential impact on operations if an infected employee comes to work

    Testing must also be consistent with federal, state and local public health guidance. As things stand, employers need to have a strong grasp on community exposure risk and the variants in circulation at any given time in order to comply with EEOC guidance. With home testing kits now widely available, many tests are not confirmed with lab results. Public health officials rely on other indicators to track outbreaks.

    Related Resources

    Refer to the Centers for Disease Control and Prevention COVID Data Tracker for maps and related data on the rate of vaccinations, new cases, hospitalizations and deaths in the U.S.  Check with public health agencies for local and regional community exposure risk. Click here for the COVID-19 Dashboard maintained by the Center for Systems Science and Engineering at Johns Hopkins University for worldwide data. For EEOC guidance, refer to What You Should Know About COVID-19.

    Did You Know?

    WorkCare has an automated system for employees to report COVID-19 symptoms before going to work. If there is an indication of exposure risk or symptoms, our occupational health nurses perform risk stratification and telehealth triage. When an employee who has had COVID is ready to come back to work, our occupational physicians perform virtual return-to-work assessments. Our subject matter experts and clinicians are available to advise employers on compliance with EEOC and public health guidance. Learn more about our screening processes on our COVID-19 landing page.

     

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