July 12, 2022

EEOC Issues 19 Updates to COVID-19 Workplace Guidance

On July 12th, the U.S. EEOC updated its Guidance on “[WYSK] About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” The focus is one change – to Q & A #A.6.  That addresses employers who require viral testing of all employees “who are or will be in the workplace.”  I find and read that most employers require testing only of some employees.  Whichever is your practice, it may be wise to review the other 18 updates in six sections of the Guidance.

The crux of A.6 is that the ADA standard for conducting medical exams, including viral testing for COVID-19, was “always met” for employers at the start of the pandemic.  Today that is no longer the case. “[E]volving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.” The Guidance then lists of number of factors an employer should consider when enforcing a testing program for all employees.

Here are a few highlights from the other 18 updates.

Applicant screening – you may screen applicants who will be in the workplace for COVID-19 only to the same extent that you screen current employees and only after you extend a conditional offer of employment. (See C.1)

Withdrawing a job offer with an immediate start date if the candidate tests positive for COVID-19 – you may do so if three factors are met; one is new. See C.4)

Mandatory vaccination requirements – employers may still require that all employees be vaccinated against COVID-19 subject to the reasonable accommodation requirements under the Americans with Disabilities Act (for qualifying medical reasons) and Title VII of the Civil Rights Act of 1964 (for a sincerely held religious belief). (See K.1)

Best Practice – the EEOC recommends, “As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability [or a sincerely held religious belief, practice or observance] on an individualized basis.”

It seems COVID-19 is making the news again. The EEOC recently found an employer to have violated GINA as a result of its COVID-19 inquiries. A court also put a hold on President Biden’s Executive Order requiring all federal employees to be COVID-19 vaccinated. Stay tuned!