And, for that, we should be grateful.
This week, the U.S. Equal Employment Opportunity Commission updated its guidance on COVID-19 and the laws that the agency enforces. In my opinion, it's pretty unremarkable.
Which is good news. "Government regulation" and "unremarkable" go much better together than "government regulation" and "DRAMATIC!!!! UNPRECEDENTED!!!!!"
Anyway, here is the new content, in quick and dirty format. How many of these things did you already know? Most, I bet.
- It's ok to ask for a doctor's note before letting an employee return to work after a bout with COVID. Or employers can forgo the doctor's note and rely on the guidance from the Centers for Disease Control and Prevention.
- It's ok to require a COVID viral test when deciding whether employees are safe to be in the workplace. But the requirement has to be "job-related and consistent with business necessity." This seems to be the most significant change to the EEOC's guidance. Before, employers could simply decide that they were going to test everybody and didn't have to justify their decisions. But, even now, blanket screening will be all right if the standard is consistent with current guidance from the CDC, the Food and Drug Administration, or "state and local public health authorities." Justifications could include level of community transmission of COVID, "the degree to which breakthrough infections are possible for employees who are 'up to date' on vaccinations," and the like.
- Antibody testing is still illegal, and Generalissimo Francisco Franco is still dead.
- COVID screening of job applicants can't be done until a conditional offer of employment has been made. And, as with all post-offer medical examinations, the employer has to impose the same requirement on all offerees in the same job category.
- However, it is ok to screen even pre-offer applicants if the employer screens everybody who enters the workplace and the applicants are entering to complete job applications or for interviews.
- If an offeree tests positive but is needed immediately, the employer can withdraw the offer, if (1) "CDC guidance recommends the person not be in proximity to others," and (2) "the job requires proximity to others." Even then, the EEOC says, the employer should consider accommodations, such as delaying the start date until the offeree recovers or letting the offeree work remotely.
- An employer can't postpone the start date for an employee without COVID but who may be "vulnerable" because older, pregnant, or with a disability. That's, like, discrimination, man.
- Sometimes the pandemic might create delays with reasonable accommodation, or even with the interactive process. But employers should try to come up with "interim solutions" as best they can.
- If an employee can't use Personal Protective Equipment or wear a mask because of a disability or religious belief, the employer should accommodate if doing so will not be an undue hardship.
- Employees are responsible for letting their employers know that they need reasonable accommodation. If the employee doesn't ask for an accommodation, the employer doesn't have to make one.
- If the employer -- rather than the employee -- is the one with a concern, it has to let the employee stay in the workplace unless there is a "direct threat," meaning that there is an imminent risk of serious harm to the employee or to others. And, even then, the employer has to consider reasonable accommodations that would mitigate the "direct threat."
- It's a good idea for employers to let all employees know that reasonable accommodations are possible and how to make requests for accommodation. This applies to COVID accommodations and to vaccination accommodations.
- It's illegal to keep older workers out of the workplace because of the fear that they are vulnerable to COVID.
- It doesn't violate the EEO laws for an employer to require employees to be vaccinated against COVID, as long as the employer considers reasonable accommodations for employees with disabilities, pregnancy, or religious objections.
- Employers may need to adjust their vaxx mandates if the mandates have a disparate impact on employees in certain protected groups.
- Employers have to keep employees' vaxx information confidential. But it's all right to share it with certain employees. For example, an admin who collects copies of employees' vaccination cards, a front desk employee who has to check vaccination status before allowing people to enter the building, or an employee who administers a COVID testing requirement. But the employees in these types of roles have to keep the information strictly confidential.
- There is no limit on the value of incentives an employer can offer to employees who get vaccinated, as long as the vaccines are administered by a third party (not an agent of the employer). If the employer or its agent administers the vaccines, the incentives "may not be so substantial as to be coercive." (I could have sworn they told us this in earlier guidance.)
And that's about it! You are now an expert! But here is a link to the real thing. The latest updates are dated 7/12/22.
Image Credit: Vaccination sign from flickr, Creative Commons license, by Open Grid Scheduler.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010