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Take note of one federal agency’s latest COVID-19 guidance

What’s the saying about stubbornness? I think it’s “You can’t teach an old dog new tricks” (or, I guess, in our household it’s “Stephen, you are just like your dad …” but that is not as relevant to the readership).

The point is that once we have figured something out, it is hard to change. That is why it is important to always keep apprised of the U.S. Equal Employment Opportunity Commission’s latest guidance regarding COVID-19.

As described in more detail below, the EEOC’s July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.”

Here are seven key takeaways from the EEOC’s recent update.

Mandatory COVID screening is still permissible if certain criteria are met

Under the ADA, a COVID-19 viral test is considered a medical examination, which means an employer that requires such testing for employees to enter or remain on-site must ensure that COVID-19 testing is “job-related and consistent with business necessity.”

In the EEOC’s latest guidance, the agency listed the factors employers should consider when evaluating whether their testing program is job-related and consistent with business necessity:  community transmission levels and the transmissibility of current COVID-19 variants, the accuracy and speed of processing different types of COVID-19 viral tests, as well as employees’ vaccination status, working conditions, and the potential impact of positive cases on operations.

Employers should also review guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, and state and local public health authorities. The EEOC cautioned, however, that “CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations based on new information and changing conditions.” Therefore, employers should regularly check for updates from the relevant government agencies if they have a COVID-19 testing protocol in place or are preparing to implement one.

Antibody tests are not permitted as a condition of re-entering the workplace

Antibody tests are still not considered a good measure of whether an individual has a current COVID-19 infection and shouldn’t be used to determine whether an employee can return to the workplace.

COVID-19 screening questionnaires are still broadly permitted

Employers are still allowed to ask all employees who are physically entering a work site if they have COVID-19 symptoms or have been diagnosed with or tested positive for COVID-19, according to the EEOC. Symptoms include fever, chills, cough, and shortness of breath.

Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to the health and safety of others, the agency said. Be aware, however, that employers generally cannot screen employees who work remotely or otherwise do not have in-person contact with co-workers, customers, or other business partners.

‘Return-to-work’ confirmation from a medical professional may be required

If employees miss work because they tested positive for COVID-19, you can require them to provide a note from a qualified medical professional confirming that they may safely return to the work site and are able to perform their job duties. However, employers are not required to ask for a doctor’s note. Instead, they may opt to follow the latest CDC guidance or the applicable state or local public health guidance to determine whether an employee can safely return to the workplace once they have met isolation or quarantine criteria.

Job applicants may be screened for COVID-19 symptoms

Under the EEOC’s ADA guidance, employers are allowed to screen individuals with job offers for COVID-19 symptoms before they start work, but consistency is key. Such screening may be done after making a conditional job offer if all employees in the same type of job who are entering the work site are also screened. Additionally, employers may screen job applicants who come on-site as part of the interview process if everyone who enters the work site – i.e., employees, contractors, and visitors – are also screened.

“The screening is limited to the same screening that everyone else undergoes,” the EEOC explained. “An employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination.”

Circumstances should be carefully considered before a job offer is withdrawn

An employer may need a new hire to start working immediately. What options exist if the worker tests positive for COVID-19, has symptoms, or has recently been exposed? If the new hire must report to a work site or would otherwise be in the physical presence of others, the employer may be able to withdraw the job offer in some circumstances.

Start by reviewing — and following — current CDC guidance that outlines when and how the worker can safely end isolation or quarantine, enter a work site, or work in the physical presence of others. When current CDC guidance is followed to address the worker’s specific circumstances, the EEOC states the job offer may be withdrawn if:

  • the job requires an immediate start date;
  • the CDC guidance recommends the person not be in proximity to others; and
  • the job requires such proximity to others, whether at the workplace or elsewhere

The EEOC noted that the isolation or quarantine period may be short for some workers, and therefore, the employer may be able to briefly delay the start date or allow the new hire to telework if the job duties can be performed remotely.

Compliance with other employment laws should be reviewed

Employers that continue to test workers for COVID-19 should ensure compliance with additional employment laws beyond the ADA. Other federal laws, as well as state and local laws, may provide employees with additional protections. Be sure to consult experienced legal counsel in one’s industry and geographic location for the latest updates.

Ultimately, the changes to the EEOC’s guidance are not meant to suggest whether testing is warranted, the agency noted. “Rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted and consistent with the requirements of the ADA.” As the COVID-19 pandemic evolves, federal agencies will continue to update their guidelines for workplace safety protocols, and employers should review and potentially revise their policies and practices accordingly.

Stephen Scott is a partner in the Portland office of Fisher Phillips. Contact him at 503-205-8094 or [email protected].