As summer winds to a close, students return to classrooms and campuses, and many workplaces have returned to in-person activities. Either in whole or in part, COVID-19 has perhaps begun to be less “front of mind” than it once was for many people. Additionally, though they continue to fluctuate, current COVID-19 infection rates appear to be trending downward again, and new vaccines are on the horizon. Nonetheless, the pandemic is not yet over and employers remain responsible for doing what they reasonably can to ensure a safe and healthy workplace. This includes maintaining compliance with a myriad of ever changing guidance related to COVID-19.
To that end, the U.S. Equal Employment Opportunity Commission (EEOC) recently updated its "What You Should Know About COVID" guidance, impacting screening methods that employers can use when evaluating an employee’s presence or return to the workplace. The EEOC revisions reflect that “going forward employers will need to assess whether the current pandemic circumstances and individual workplace justify viral screening testing of employees to prevent workplace transmission of COVID-19.” This is a clear departure from the “one size fits all” solutions offered previously, and shifts to a more individualized and situational decision-making approach by employers. Some of the highlights relate to screening employees entering the workplace, antibody testing, and withdrawing job offers.
Employers will now have to prove that testing requirements are consistent with a “business necessity” and are job-related, rather than relying upon the prior guidance that it was always permissible. While there is no single factor to assess such a necessity, the EEOC has outlined a number possible considerations including:
- 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 vaccinations;
- The ease of transmissibility of the current variant(s);
- The possible severity of illness from the current variant;
- What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
- The potential impact on operations if an employee enters the workplace with COVID-19.
When making this assessment, employers should also consider updated CDC guidance (along with other relevant sources) to determine whether screening testing is appropriate. (EEOC, A.6.)
Given the current CDC guidance on antibody tests (that these tests cannot determine if someone is currently inflected with COVID-19 or immune), the new guidance now prohibits employers from requiring an antibody test from employees returning to the workplace.
For job applicants or potential employees, employers can require screening for symptoms of COVID-19, as long as there is a conditional job offer and the policy is applied uniformly.
Additionally, an employer can rescind a job offer after a positive COVID-19 test, if the job requires an immediate start date, the current guidelines applicable to the employee prohibit close proximity to others, and the job requires close proximity to others. The EEOC notes that given the short period for isolation or quarantine, while rescission may be permissible, employers should first consider adjusting the start date or permitting telework (for job duties that could be performed remotely) where possible.
As the COVID-19 pandemic continues to evolve, Miller Nash’s employment team remains ready to assist employers in adapting to the changing circumstances.
The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available. Employers should feel free to call on the Miller Nash team if you have questions or need assistance, and always consult with an attorney for legal guidance.
