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Employment and Labor

When are COVID-19 Policies a “Business Necessity”? The EEOC’s New Guidance on Navigating the Post-Pandemic Workplace

When are COVID-19 Policies a “Business Necessity”? The EEOC’s New Guidance on Navigating the Post-Pandemic Workplace

On July 12, 2022, The Equal Opportunity Employment Commission  (EEOC) updated its guidance on the Americans with Disabilities Act (ADA) and the Rehabilitation Act as they relate to the pandemic. The new guidance recognizes that the COVID-19 landscape is ever-changing. Different locations face different levels of risk from week to week and month to month, so businesses need to be aware of some of the updated guidelines.

Business Necessity

According to the new guidance, ”business necessity” takes the following into account for every individual business: (1) the current level of community transmission, (2) the vaccination status of employees, (3) the accuracy and speed of processing of available tests, (4) the degree to which breakthrough infections are possible for those up to date on vaccines, and (5) the ease of transmissibility and severity of illness caused by a current variant. The type of business is also relevant  insofar as employee infections affect businesses differently depending on the type of work performed. For example, a company providing  medical services  requiring close contact between employees and patients will often have a different result under the “business necessity” test as compared to a business that has very little face-to-face interaction and/or where employees can do their jobs remotely.

COVID Testing Employees

A COVID-19 viral test has long qualified as a medical exam under the ADA, which applies to private employers with 15 or more employees. Employers may conduct medical exams in very limited circumstances: (1) after the offer of employment is made, and only if the test is required for every person in the same job category; and (2) after an employee begins work if it is “job related and consistent with business necessity.” However, a medical test is never allowed before a job offer is made. Whether an employer may screen employees for COVID-19 with a viral test depends on the “business necessity” factors listed above, and employers should note that the ability to test employees will change as guidance from the CDC, FDA, and local public health authorities changes. Antibody testing, however, is always prohibited under the ADA, because the CDC has explained that it does not establish whether an employee has a current infection, and therefore cannot meet the “business necessity” standard.

Return to Work

The new guidance also clarifies an employer may require a note from a qualified medical professional stating that it is safe for the employee to return to work after being absent due to COVID-19. If such a note is not feasible, employers may rely on CDC guidelines to determine when it is safe for an infected employee to return to work.

When to Make Accommodations

Where a business requires the use of personal protective equipment on the job, such as face masks or gloves, the updated guidance states that the employer should provide reasonable accommodations for employees who cannot comply with the requirement due to a disability or religious beliefs. However, such accommodations are only required if they do not place an undue hardship on the operation of the business. One example might be an employee that cannot wear gloves due to a latex allergy, or a person who wears a beard for religious reasons and has difficulty wearing a traditional face mask. In these situations, the nature of the job will influence the determination of whether reasonable accommodations can be made.

The updated guidance also addresses accommodations for employees with medical conditions that put them at higher risk for severe illness if they contract COVID-19. Such employees must inform their employer about the condition and request an accommodation. The employer is entitled to ask questions and seek documentation to determine whether the individual has a “disability” under the ADA. A qualified employment attorney may be able to assist in making a determination about whether the condition qualifies as a disability. If a reasonable accommodation is available and does not cause undue hardship to the business, the employer must provide the accommodation. The EEOC lists accommodations that are considered reasonable, including providing personal protective equipment, HEPA filters on site, physical barriers, telework when possible, and elimination of non-essential employees from the workspace.

Importantly, the updated guidance stresses that it is never legal for an employer to exclude candidates or employees who have conditions that put them at increased risk for COVID-19, which can include advanced age. Even if this comes from a place of concern for the person’s health, such actions  nevertheless constitute discrimination under the ADA and/or Age Discrimination in Employment Act

Additionally, the updated guidance on vaccinations instructs that employers can require vaccinations, but must provide reasonable accommodations for those employees who decline to be vaccinated due to disabilities or religious beliefs where accommodation would not cause an undue hardship to the business.

So much has changed since COVID-19 first appeared almost three years ago and it has been a tough road for employers on many fronts. However, keeping abreast of EEOC and CDC guidelines will help businesses make more informed policy decisions when it comes to their business and employees.