In the last two years, COVID-19 has become a regular part of our lives, and perhaps, in order to re-establish some normalcy, we’ve accepted it and moved on. The EEOC, however, has re-evaluated its COVID-19 testing stance for employers and made some recent changes. For those workplaces that still require screening and testing, the EEOC update necessitates employers to justify that their testing practices are job related and consistent with business needs. It’s no secret that we’re fans (and a client) of Fisher & Phillips, a law firm that specializes in employment law, and we follow their guidance on these subjects; their recent article that suggests the following:
- Because COVID-19 testing is considered a medical examination, employers need to review their policies and assure, with objective evidence, that the employee’s ability to perform essential job functions will be impaired by the medical condition or that the employee will pose a risk of substantial harm to themselves or others. The EEOC advised employers to consider: community transmission levels, transmissibility of COVID variants, working conditions, etc.
- Employers should review guidance from the CDC and other public health authorities and memorialize this process regardless of whether you maintain your current COVID policy or change it.
- If you continue to require testing, ensure that you’re checking the result of a viral test that detects COVID-19 at that time, and not an antibody test, which may signal a past infection.
- COVID screening questionnaires are still considered valid, and employers may continue to exclude employees with COVID symptoms from the workplace. The F&P guidance reminds us that organizations cannot generally screen remote workers and those who do not otherwise have personal contact with coworkers, customers or other business partners.
- An employer may ask a worker to provide a medical practitioner’s statement that he or she may safely return to work after a COVID infection, but companies are not required to do so. It may be more practical to include in your policy other ways of determining safety when allowing employees to return to work, especially if a medical practitioner is not able to provide the note.
- A workplace may screen applicants and potential employees in the same manner that it screens anyone else. Going beyond your regular screening may be considered engaging in a disability-elated inquiry or pre-hiring medical examination.
- Make sure to review compliance with other employment laws if your workplace continues to test workers.
The bottom line is that just because COVID has perhaps faded into the woodwork of our day-to-day minds doesn’t mean that as employers, our policies can remain on auto-pilot. Stay informed, dust off those P&P and review your protocols and of course, we always recommend F&P as a source of reliable information.