Updated Guidance on How EEO Laws Cover COVID-19 in the Workplace

On July 12th, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on how Equal Employment Opportunity (EEO) laws cover COVID-19 in the workplace. The guidance features a series of technical assistance questions and answers that clarify how employers should address COVID-19-related scenarios under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Rehabilitation Act). Notably, the July 12 updates allow employers to require COVID-19 screening testing in specific instances. As COVID-19 cases increase nationwide, federal agencies are once again updating guidance and policy to meet the pandemic’s latest evolution. For example, in early July, the Occupational Safety and Health Administration (OSHA) revised its COVID-19 National Emphasis Program, boosting enforcement in high-risk industries.

Background of the COVID-19 Guidance

Released in 2020, the EEOC’s technical “question and answer” guidance on COVID-19 in the workplace informs how employers should comply with EEO laws during the pandemic. Specifically, the guidance covers anti-discrimination laws like the following:

• ADA;
• Rehabilitation Act;
• Age Discrimination in Employment Act (ADEA); and
• Genetic Information Nondiscrimination Act (GINA).

In addition, the guidance also addresses COVID-19 compliance and Title VII of the Civil Rights Act (Title VII). The EEOC has continued to update the guidance regularly throughout the pandemic.

Updated Guidance on COVID-19 in the Workplace

Previously, the guidance allowed employers to screen workers broadly for COVID-19. However, the updated guidance on COVID-19 in the workplace now conditions viral screening tests on job relevancy, necessity, and the state of the pandemic. This limits how much personal medical information employers can obtain from applicants and employees. The updates are consistent with ADA anti-discrimination law. Under the ADA, a covered entity may require a medical examination, like a COVID-19 screening test, only if it is:

• job-related, and
• consistent with business necessity.

Additionally, the EEOC guidance covers applicant screening, job withdrawals, and reasonable accommodations related to COVID-19 in the workplace.

More Questions Regarding COVID-19 in the Workplace

Additional July 12 updates to the EEOC guidance address timely concerns relating to business necessity and the nature of the COVID-19 pandemic. Employers can consider the following questions and answers: Q: When an employee returns to the workplace after being out with COVID-19, does the ADA allow employers to require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties? A: Yes. Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional. Q: May an employer withdraw a job offer when an applicant needs to start working immediately because the individual has tested positive for COVID-19? A: An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer 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 such proximity to others, whether at the workplace or elsewhere.

Employer Takeaways

The EEOC reminds employers that the pandemic has consistently put EEO laws to work in new situations. Guidance on COVID-19 in the workplace seeks to clarify how the law applies so employers can remain compliant. Therefore, employers must be vigilant in staying up-to-date with current pandemic guidance on EEO regulations. In addition, while many EEOC laws apply to employers with 15+ employees, many states have laws prohibiting job discrimination. Therefore, to prevent possible fines or lawsuits, employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow.