By: Ryan P. Snyder, Attorney, CDF Labor Law LLP, San Francisco Office
On July 12, 2022, the United States Equal Employment Opportunity Commission (“EEOC”) updated and expanded their technical assistance related to the COVID-19 pandemic, addressing questions related to employers, including modified guidance for (a) screening employees, (b) usage of antibody testing, and (c) requirements for new employee hires and job offers. We have summarized these key updates below.
SCREENING EMPLOYEES FOR COVID-19 MUST BE JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY
According to the EEOC, employers must now take into account a number of factors before they are permitted to perform on-site COVID-19 testing. Employers must “assess whether the current pandemic circumstances and individual workplace circumstances” justify testing employees to prevent a workplace spread. The EEOC follows the broad-based Americans with Disabilities Act requirement, which states that any mandatory medical test of employees be “job-related and consistent with business necessity. ”In applying this standard, several factors will be analyzed, including the level of community transmission, employee vaccination status, the ease of transmission of the current variant(s), the possible severity of illness from the current variant, and working conditions. Employers are encouraged to review the latest Centers for Disease Control and Prevention (“CDC”) guidance to determine whether testing is appropriate under the new EEOC Guidance.
ANTIBODY TESTING CANNOT BE REQUIRED BEFORE ALLOWING EMPLOYEES TO RE-ENTER THE WORKPLACE
A recent report from the Centers for Disease Control and Prevention found that antibody testing is not a reliable source to show “whether an employee has a current infection, nor establish that an employee is immune to infections.” As a result, the EEOC now advises that an employer cannot require antibody testing before allowing employees to re-enter the workplace. However, as discussed above, a COVID-19 viral test may still be used, under certain conditions, to screen employees for infection.
COVID -19 TESTING MAY BE CONDUCTED FOR JOB APPLICANTS
After a conditional job offer is made to an applicant, employers may test applicants for COVID-19, as long as the employer consistently tests all entering employees in that position. Furthermore, if an employer screens everyone who enters a worksite for COVID-19 (including visitors, employees, and contractors), then even applicants in the pre-offer stage, who need to be in the workplace as part of the application process, may be screened during the hiring process.
A JOB OFFER MAY BE WITHDRAWN AFTER AN EMPLOYEE TESTS POSITIVE FOR COVID-19 UNDER CERTAIN CONDITIONS
Finally, the EEOC states that a job offer can be rescinded due to a positive COVID-19 viral test, 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. Current CDC guidelines regarding when and how it is safe for an individual to safely enter a workplace or otherwise work in the presence of others should be evaluated prior to making this decision. Given that some individuals may only need a short period of time to isolate/quarantine, employers should consider whether they can adjust a start date or permit remote work in the interim. If such a start date can be modified to accommodate the COVID-19 diagnosis, without undue hardship, the employer probably should consider doing so, despite this Guidance.
CONCLUSION
EEOC’s updated guidance makes clear that the COVID-19 pandemic and employer obligations will continue to evolve based on new information and changing conditions. As such, CDF Labor Law will continue to monitor and provide updates in this area.
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Mark Smith
Advocate
California Builders Alliance
5370 Elvas Avenue ǀ Sacramento, CA 95819
Cell: 916.335.5072
Email: mark.smith@calbuilders.org
Email: mark@smithpolicygroup.com