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July 2022

EEOC Releases Updated Guidance on How to Stay Symptom-Free of COVID-19 Violations

On July 12, 2022, the EEOC provided additional guidance on COVID-19 in the workplace to combat the constantly evolving pandemic circumstances.  Here are the key takeaways:

  1. Requiring Doctor’s Notes Of Recovery From COVID-19 Is Permitted. 

    If an employee is out of work after contracting COVID-19, employers are permitted to ask the employee to provide a doctor’s note stating that the employee is safe to return to work and that the employee is able to perform his or her job duties.  Depending on the circumstances of the employee, COVID-19 may or may not be considered a disability.  As such, requesting a doctor’s note will either not be considered a disability-related inquiry (which is permitted), or it would be considered a “business necessity.”  Requesting a doctor’s note meets the standard for business necessity in this circumstance because it is related to the possibility of transmission of the disease and is related to the employer’s concern about the employee’s ability to resume working.  Note that employers still cannot require an antibody testing to return to work (see section 3 below).  Keep in mind that if you choose to ask an employee for a doctor’s note, you should objectively apply this requirement to all employees.
  2. Employers Are Permitted To Administer COVID-19 Viral Tests. 

    A COVID-19 viral test is one that detects SARS-CoV-2 or biomarkers of SARS-CoV-2.  Employers are permitted to administer COVID-19 viral tests only if the test is “job-related and consistent with business necessity” standard.  Possible considerations when determining whether a “business necessity” applies includes 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 vaccines, the possible severity of illness from the current variant, what type of contacts employees may have had with others in the workplace, and the potential impact on operations if an employee enters the workplace with COVID-19.
  3. No Antibody Testing Can Be Required For Employees. 

    CDC guidance explains that an antibody test cannot be required by employers before an employee re-enters the workplace because an antibody test fails to meet the “business necessity” standard for permitting medical examinations or inquires of employees.  An antibody test fails to show whether an employee has a current infection or whether an employee is immune to an infection (which would justify a medical inquiry).
  4. Employers Can Screen Applicants For COVID-19 Symptoms. 

    If an employer screens everyone who enters the workplace, then an employer can screen any applicant who needs to enter the workplace as part of the application process (e.g. a job interview).  Employers can also screen applicants after making a conditional job offer, as long as the employer does this consistently for all other applicants.  Be careful that the scope of the screening does not go beyond the same screening as applied to all other employees.
  5. In Certain Situations, An Employer Can Withdraw A Job Offer Because Of COVID-19. 

    If a recently hired employee exhibits symptoms of COVID-19 or has recently been exposed to someone with COVID-19, the employer can withdraw the job offer if all of the following requirements are met: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not to be in the proximity of others, and (3) the job requires the employee to be in proximity to others.  However, if an employer can adjust the start date or permit remote working until the isolation/quarantine period ends, then that should be done before withdrawing any offer.
  6. Delays In The Interactive Process Can Be Excusable. 

    It is recognized that the COVID-19 pandemic has created issues in delaying engaging in the interactive process.  If there is a delay in interactive process, the employer must show that there were specific pandemic-related circumstances that justified the delay in providing reasonable accommodation.
  7. Employers Can Still Screen Employees For COVID-19 (But Be Careful!) 

    Employers are still able to make disability-required inquires and conduct medical exams to screen employees for COVID-19 when entering the workplace, but only if it is “job-related or consistent with business necessity” standard.  As stated above, employers should be careful not to engage in any unlawful disparate treatment based on their decision to screen employees, and should equally apply screening policies to all employees.

As the COVID-19 pandemic continues to evolve, employers should continue to review their COVID-19 related policies and procedures to ensure compliance. 

For more information, contact your Gordon & Rees employment law attorney. Learn more about the employment law practice group here

Employment Law

Alexa L. Foley
Debra Ellwood Meppen
Brandon D. Saxon

Employment Law