On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) released its most recent guidance to employers regarding COVID-19 procedures. At a time when COVID-19 cases continue to rise due to highly transmissible Omicron variants, the EEOC acknowledged that the ever-evolving circumstances require employers to make an individualized assessment consistent with the requirements of the Americans with Disabilities Act (ADA). Highlights of the EEOC’s guidance include topics such as the return of employees to the workplace, mandatory testing, new employee screening, and vaccine mandates.
Summary of the EEOC’s Most Recent Guidance
Note from Qualified Medical Professional
Employers may require a note from a qualified medical professional explaining that it is safe for the employee to return to work after infection with COVID-19. The EEOC also added a few practical alternatives to an employer requiring a doctor’s note, such as following CDC guidance to determine whether it is safe to allow an employee back into the office and/or reliance on local clinics to provide confirmation that an individual is no longer infectious.
An employer’s decision to test an employee for the presence of COVID-19 is no longer automatically compliant with the ADA. Now, an employer must first show that the viral test is “job-related and consistent with business necessity” before administering the COVID-19 viral test to evaluate the employee’s presence in the workplace. The EEOC goes on to define the “business necessity” standard based on relevant factors, including, but not limited to: (a) the level of community transmission; (b) the vaccination status of employees; (c) the possibility of severity of transmissibility of the current variant; and (d) the potential impact on operations if an employee enters the workplace with COVID-19.
The EEOC makes clear that an employer’s decision to test to detect the presence of the COVID-19 virus is not permissible through antibody testing. Antibody testing does not meet the “business necessity” standard (as discussed above) because based on CDC guidance, antibody testing is not accurate enough to determine whether an employee is or can be infected with the COVID-19 virus.
An employer that screens everyone on-site may screen an applicant during the pre-offer stage for COVID-19. Furthermore, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer if that employer does so for all employees entering in the same type of job. Employers may withdraw a job offer to an employee who tests positive for COVID-19 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 proximity to others. The rescission of an offer cannot be based solely on any protected category.
The EEOC continues to provide guidance that employers are permitted to require all employees to be vaccinated against COVID-19, so long as employers provide reasonable accommodations for those subject to religious or medical exemptions. If a particular employee cannot meet a safety-related qualification standard because of a disability – such as mandatory vaccination – an employer may not require compliance for that employee unless the individual would pose a “direct threat” to the health or safety of the employee or others while performing their job. Also, with the CDC’s recommendation of boosters, the new guidance allows employers to confirm employees are up to date with vaccination. Employers should keep in mind that an employee’s vaccine information may only be shared with those employees that require the use of that information to perform their jobs.
For an employer that would like to incentivize employees to receive the COVID-19 vaccine, there is no limit on the use of incentives, so long as the vaccine is administered by someone that is not the employer or its agent. If the vaccine is administered by the employer or its agent, the incentive may not be so substantial as to be coercive. For tax purposes, employers may treat the payment of vaccination bonuses or incentives as gifts that can be excluded from the regular rate of pay, but under IRS rules, the payment is taxable income to the employee. Under FLSA rules, employers do not have to recalculate the regular rate for overtime purposes.
Businesses seeking further guidance should contact KJK Labor and Employment attorney Rob Gilmore (RSG@kjk.com; 216.736.7240) or Kirsten Mooney (KBM@kjk.com; 216.736.7239).