Yes, Employers - We Still Need to Talk About Covid

Last month, the Equal Employment Opportunity Commission (EEOC) made several revisions to its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” These recent modifications have potentially significant impact on employers as many seek to transition back to in-office work and increase staffing levels generally. Most important are changes to guidelines around COVID testing in the workplace. In brief, where before such tests were presumed to be “job related and consistent with business necessity” – i.e., presumptively legal – that is no longer the case under the updated guidance.

EEOC Guidance

The EEOC explains in its most recent revision to the guidance document that, at the outset of the pandemic, the ADA standard for conducting medical examinations was always met for employers to lawfully conduct worksite COVID-19 viral screening testing. At this stage in the pandemic, however, the EEOC maintains that employers will now need to assess whether current pandemic conditions and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. As detailed below, the EEOC proffers a number of factors employers are to consider. The Agency explains that the recent change is not meant to suggest that testing is or is not warranted; rather, the revised Q&A 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. Of course, such individualized analysis is rife with the possibility of second-guessing and potential downstream claims and liability.

COVID-19 Testing Under New Guidance

Under the ADA, employer medical inquiry – e.g., COVID-19 testing – must be job-related and consistent with business necessity to be lawful. Rather than presumed, under the new guidance, employers must engage in an individualized assessment to determine whether present pandemic circumstances and individual workplace circumstances justify COVID-19 testing of employees. In this regard, the guidance is in effect a return to pre-COVID, status quo ante.

To guide this individualized assessment, the EEOC directs employers to consult then current guidance from Centers for Disease Control and Prevention (CDC) and other public health authorities. Specifically, the guidance provides:

Employer 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 Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. Be aware that CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

See EEOC Technical Assistance Q&A at A.6. Thus, even the guidance itself recognizes that the standard for compliant workplace testing will be a “moving target.”

With respect to meeting the “business necessity” standard, the guidance notes several “possible considerations” including:

• the level of community transmission;
• vaccination status of employees;
• the speed and accuracy of available testing;
• the prevalence of “breakthrough” infections of the fully vaccinated (and boosted) staff;
• the ease of transmissibility and severity of illness of the then current variant;
• the types of contacts between employees and others in the workplace (e.g., working with medically vulnerable individuals); and
• the potential impact on operations if an employee enters the workplace with COVID-19.

Unfortunately, the guidance provides literally no direction as to how the above factors ought to be weighted or assessed by employers, further increasing the likelihood of “second guessing” and potential confusion and claim risk.

Impact on Job Applicants

The updated guidance confirms that employers may continue to screen applicants for symptoms of COVID-19 after making a conditional job offer, so long as it does so for all entering employees in the same type of job. However, the guidance continues to provide that an employer may only withdraw a conditional job offer because an applicant tests positive for COVID-19, has symptoms of COVID-19, or has been recently exposed, AND ONLY if three additional conditions are met:

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 EEOC Technical Assistance Q&A at C.4

Notably, the updated guidance also confirmed that employers may NOT delay a start date or withdraw a job offer because of a concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19. The EEOC explains that a “concern for an applicant’s well-being – an intent to protect them from what it perceives as a risk of illness from COVID-19 – does not excuse an action that is otherwise unlawful discrimination.” Thus, only in circumstances where an underlying condition might rise to the level of a “direct threat” to the employee can such a delay be consistent with applicable law.

Conclusion

The EEOC’s updated guidance is in effect a return to the pre-pandemic state of the law – i.e., where employer medical inquiries were highly scrutinized and permitted in very limited circumstances. Given that the clear line of presumed “job related and consistent with business necessity” has now been erased, employers are well-cautioned that COVID-19 testing must first be supported by an individualized inquiry including at least the factors discussed above.

Employers who wish to continue to implement such testing should work with experienced employment counsel to ensure that compliance risk is mitigated to the extent practicable.