On July 12th, 2022, the U.S. Equal Employment Opportunity Commission updated its COVID-19 guidance.
Here are the redlined changes provided by attorney Eric B Meyer of FisherBroyles LLP. But the EEOC wants you to pay close attention to the updated circumstances under which employers may test employers for COVID-19 at work:
All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act. Note: Other federal laws, as well as state or local laws, may provide employees with additional protections.
Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act. Basic background information about the ADA and the Rehabilitation Act is available on EEOC’s disability page.
The EEO laws, including Title I of the ADA and the Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following current guidance and suggestions made by CDC or state/local public health authorities about steps employers should take regarding COVID-19.
Does this mean employers can no longer test for COVID-19? No. However, the ADA “business necessity” standard requires employers to consider the most current medical and public health information to determine if testing is appropriate at the time.
The ADA would not prevent employers under any circumstances from:
asking employees if they have any COVID-19 symptoms,
requiring employees to furnish a negative test as a condition of returning to work after testing positive, or
otherwise following CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.
As always, check with your state and local laws to be certain you are not in violation of any more stringent local requirements to prohibitions.
Lisa Smith, SPHR, SCP
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