EEOC Updates Guidance on Workplace Bias Laws and COVID-19

The U.S. Equal Employment Opportunity Commission has issued updated guidance for employers on the interplay of workplace bias laws and COVID-19 workplace testing, vaccinations, and other return-to-work issues. The updated guidance, released July 12, 2022, addresses various aspects of COVID-19 and its impact on the workplace, including screening testing, employee return to work after COVID-19, screening applicants for COVID-19, and reasonable accommodations.

Key Takeaways:

• The EEOC has removed 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.
• Employers must consider various factors, including the level of community transmission, vaccination status of employees, and contact types, when determining whether a business necessity justifies mandatory screening testing.
• 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.
• Employers may withdraw a conditional job offer to an applicant who tests positive for COVID-19 or has symptoms of COVID-19, but only 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.
• Employers will be required to show specific pandemic-related circumstances that justify a delay in providing a reasonable accommodation to which an employee was entitled.
• 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, but must provide accommodations under the ADA and Title VII, absent undue hardship.
• Since July 12, 2022, the Centers for Disease Control, and state and local public health authorities, guidance on the use of viral tests for screening purposes can be changed periodically.

Statistics:

• Employers must consider the following factors: level of community transmission, vaccination status of employees, and contact types, when determining whether a business necessity justifies mandatory screening testing.
• Employers withdraw a conditional job offer to an applicant who tests positive for COVID-19 or has symptoms of COVID-19 under specific circumstances.
• Employers are required to show specific pandemic-related circumstances that justify a delay in providing a reasonable accommodation to which an employee was entitled.