EEOC Updates Guidance for Workplace Screening for COVID-19
Going through the college admission process is challenging. Students need to fill out an application, write essays, and obtain teacher references—that's in addition to deciding where to apply to college and working through the financial aid process.
After spending hours compiling the required information, students learn that admission decisions are based on the student's high school academic performance and extracurriculars, essays, demographics, test scores (where accepted), and a myriad of other factors, which vary from college to college. For instance, University of Maryland lists 26 factors it considers when conducting a holistic review to select applicants for each year's class.
Applying to be a music performance major adds another layer to the college process---the audition. And unlike the myriad of factors considered when determining admission to a college, which functionally decide admission on the student's entire high school career, admission to a music school often is based 80% or more on the student’s performance at a 30-minute audition.
But wait—there’s more. Not every music applicant is allowed to audition. Instead, applicants submit a pre-screening video with their application. If they pass the pre-screen, they are invited to audition.
The Covid-19 pandemic has ushered in a different type of pre-screening. To see a medical professional, patients must answer questions designed to identify those whose visits should be deferred because they have COVID-19 symptoms or have been exposed to COVID-19. Those who pass are "invited" to visit the medical office for their appointments. But after arriving at the medical office, there is yet another screening–the temperature test–before they are allowed into the office.
Employers also have adopted COVID-19 testing policies. Some of these policies have come under fire with claims they violate laws about workplace medical testing. To address these concerns, the Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidelines to clarify when employers may require COVID-19 testing and what tests are—and are not—permitted. This article discusses those guidelines.
Types of COVID-19 Testing
The Center for Disease Control and Prevention (CDC) describes two primary categories of COVID-19 tests – viral or antigen tests and antibody (serology) tests. It’s important to understand the purposes of these tests because the EEOC’s guidance differs based on the type of test administered.
Both the home “rapid tests” and PCR tests most people are familiar with are diagnostic tests to detect whether someone is infected with COVID-19.
But not all diagnostic tests are created equal. According to the CDC, what most people call “rapid” tests detect the COVID-19 viral antigen. An antigen is the substance that infects an individual. Rapid tests are accurate, but they produce some false negative results. But the advantage is that they can be performed at home or in the workplace in about 15 minutes.
PCR tests (which the CDC notes are nucleic acid amplification tests or NAATS) are more reliable in detecting the virus, but they must be performed in a laboratory and, therefore, take longer to obtain results. Because PCR tests detect COVID-19 genetic material, these tests can detect “dead” virus long after the individual has recovered.
With both tests, someone previously infected can test positive for COVID-19 weeks after they have recovered and likely aren’t contagious. With PCR tests, someone can test positive for up to 90 days.
Another type of COVID-19 test is an antibody (serology) test. This test checks whether someone has antibodies in their blood that can fight COVID-19, which can be the case if the individual was vaccinated or previously has been infected with COVID-19. However, antibody tests don't show whether someone is infected.
May Employers Proactively Screen Employees for COVID-19?
The standards used to determine whether an employer may screen employees for COVID-19 are the same as those used for other medical testing. The employer may require that employees be screened for COVID-19 via an antigen or PCR test only if it is job-related and is a “business necessity.”
For example, a nursing home may require COVID-19 screening for all employees–or at least all employees with potential contact with residents. For a nursing home, the test would be job-related and a "business necessity" because residents are often frail and susceptible to severe illness from COVID-19.
On the other extreme, an employer couldn’t require a remote worker who never enters the employer’s workplace or interacts in person with customers for their employment to test for COVID-19. And a landscaping company likely wouldn’t be able to require COVID-19 screening for all employees. Those employees work outside much of the time, rather than in close proximity with others. And their jobs aren’t likely to bring them in contact with people particularly susceptible to COVID-19.
According to the EEOC, job function isn’t the only factor that might be considered when determining "business necessity." For example, an employer also might need to consider the level of community transmission, how many employees are vaccinated, and attributes of the current COVID-19 variant (e.g., the severity of illness and transmissibility of the variant). So, “business necessity” for a given employer or a job function might change from time to time.
The "business necessity" requirement doesn't apply to antibody tests. EEOC guidelines state that employers may not require antibody tests as a condition for entering the workplace.
What May Employers Require from Employees Returning to Work after COVID-19 Infection?
The EEOC provides two options for employers concerned about employees returning to work after being infected with COVID-19. First, an employer may request that the employee provide written confirmation from their medical provider that the employee can perform their job duties and that there is not a risk the employee could transmit COVID-19 to others. Or an employer also may require compliance with the CDC guidelines, which currently require staying home in isolation for five days and wearing a mask in public for five additional days – provided the individual has no symptoms.
May an Employer Ask an Employee About Exposure to Covid-19?
An employer may ask employees if they have been exposed to COVID-19 and require precautions consistent with CDC guidelines if they answer "yes." The employer may not ask employees if their family members have COVID-19, as inquiries about family medical issues violate the Genetic Information Nondiscrimination Act. Plus, an inquiry limited to family members isn't reasonable because employees can contract COVID-19 from non-family members.
Prospective Employees and COVID-19 Screening
Generally, an employer may only screen prospective employees for COVID-19 after making a conditional job offer, provided the requirement is consistently applied to all employees in the same job function. But an employer may not screen prospective employees before offering them a job unless the screening is part of a universal screening required of everyone entering the employer’s workplace, whether or not they are employees.
If a prospective employee tests positive for COVID-19, the employer may delay the employee’s start date consistent with CDC guidelines. However, employers only may withdraw a job offer if the employer needs the job filled immediately, the position requires contact with others, and CDC guidelines would not permit the employee to have that contact.
Employers should remember that disability, age, and other employment discrimination laws still apply. Therefore, although employers may screen prospective employees for infection with COVID-19, employers may not ask employees if they have a medical condition that might make them more susceptible to severe illness from COVID-19. Nor may employers refuse to hire older or pregnant individuals simply because they are more likely to become severely ill from COVID-19.
Employer Best Practices
Rarely do music school applicants know the specific criteria used to evaluate whether they will be invited to audition. However, Employers can and should be more transparent with employees regarding COVID-19 screening. Employers should do the following to ensure compliance with EEOC guidelines:
Keep up-to-date on and follow CDC guidelines regarding COVID-19
Remain abreast of community transmission and vaccination rates for each office location
Establish written criteria for determining whether an employee’s job duties and work environment support screening for COVID-19 and evaluate each job function separately to determine if testing or other screening for COVID-19 is a “business necessity.”
Update screening requirements to address specific community transmission and vaccination rates, variant characteristics, and changes in CDC guidance.
Treat similarly-situated individuals the same to prevent claims of unlawful discrimination.
Remember that disparate impact and other equal employment laws continue to apply, notwithstanding the COVID-19 pandemic.
© 2022 by Elizabeth A. Whitman
Any references to clients and their legal situations have been modified to protect client confidentiality, and descriptions of factual circumstances may have been adapted to protect individual privacy.
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