July 12, 2022
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The Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” guidelines for employers conducting COVID-19 screening in the workplace in compliance with the Americans with Disabilities Act (ADA). There are six important areas employers should reevaluate and revise in their COVID-19 screening policies in connection with the recent update.
A COVID-19 viral test is a medical examination under the ADA, so employers must show the testing is job-related and consistent with business necessity. Employers should consider the following factors in their determination: community transmission levels and transmissibility of current variants, accuracy and processing speed of different viral tests, vaccination status, working conditions, and potential impact of positive cases on operations. It is the burden of the employer to regularly check CDC, FDA, and other public health authority guidance before implementing testing procedures.
Antibody tests should not be used to permit reentry of the workplace. CDC guidelines state that antibody tests do not show whether an employee is immune to infection.
Screening questionnaires continue to be broadly permitted. Keep in mind that employers generally cannot screen remote employees or those who do not have in-person contact with co-workers, customers, or business partners.
Employers may choose to require a healthcare provider note certifying the eligibility of an employee to safely return to work after testing positive for COVID-19. In the event an employer requests a doctor’s note, they should prepare themselves for the possibility that local healthcare professionals unwilling to provide documentation at all.
Screening job applicants for COVID-19 symptoms before starting work is permissible. The screening should be consistent with the type of screening everyone receives for the same type of job and for anyone who enters the worksite. Screening may only occur after making a conditional job offer, unless the employer screens all persons entering the facility (e.g., workers, visitors, customers, general public).
Revoking a job offer after a positive COVID-19 test, symptoms, or exposure should only be done in limited circumstances. If the new hire cannot telework or a short isolation or quarantine period is not an option, you can revoke the job offer if the following conditions are met: a) the job requires an immediate start date; b) CDC guidance recommends the person not be in proximity to others; and c) the job requires proximity to others in the workplace or elsewhere.
Remember the EEOC also enforces other anti-discrimination laws. Employers should also make sure their testing requirements comply with the Rehabilitation Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act.
- Review the updated guidelines here.
- Review and revise policies for compliance.
- Have appropriate personnel trained on screening procedures.
- Review with legal counsel before revoking a job offer due to COVID-19 status.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase