August 1, 2022

EEOC Updates COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance on July 12, 2022, coinciding with the resurgence in COVID-19 cases. The updates focus on viral testing, antibody testing, workplace safety, and requests for accommodations. Some of the updates are summarized below.

The latest guidance indicates an employer may require a note to return to work after infection, as it is considered a business necessity relating to the possibility of transmission of COVID-19 and the ability of the employee to resume working after the illness. Employers may follow the Centers for Disease Control (CDC) Guidelines in allowing an employee to return to work.

The EEOC advises that employers must justify required COVID-19 testing in the workplace to avoid violating the disability discrimination law. The EEOC Enforcement Guidance states that a medical examination may be job-related and consistent with business necessity when objective evidence shows that the employer reasonably believes the employee’s ability to perform essential job functions will be impaired by a medical condition or the employee will pose a “direct threat” to themselves or others. The updated guidance includes the following factors to consider when determining whether testing is regarded as a business necessity:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing of different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are up-to-date on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant(s)
  • The types of contacts employees may have with others in the workplace or other places where they are required to work
  • The potential impact on operations if an employee enters the workplace with COVID-19

An employer’s use of antibody testing follows the CDC Guidance. The CDC guidance states that antibody testing may not indicate an employee’s current infection nor establish an employee is immune to infection. Employers should not use antibody testing to determine whether an employee may enter the workplace.

Cities, as employers, must comply with regulations issued by the Occupational Safety and Health Administration (OSHA) and adopted by the Kentucky Labor Cabinet that require the use of personal protective equipment (PPE). These regulations do not prohibit using reasonable accommodations under the EEO laws if those accommodations do not violate OSHA requirements. The employer should discuss any requests and provide accommodations if it does not cause an undue hardship on the operation of the employer's operations.

A request for an accommodation from an employee or a third party, such as an employee’s doctor, must inform the employer that the employee needs an accommodation for a reason related to a medical condition, which can be related to COVID-19. Once a request is received, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. However, even if the employer knows that an employee has a disability that may be more severely impacted by COVID-19, the Americans with Disabilities Act (ADA) does not mandate that the employer act unless the employee requested reasonable accommodation or there is a safety concern that impacts the employee’s ability to perform their job.

If an accommodation request is made, some considerations that may eliminate or reduce a direct threat to self or others may include masks, gloves, or other equipment beyond what the employer may provide. Accommodations may also include enhanced air filtration measures. These barriers separate an employee from coworkers and the public by increasing the space between the employee and others. Employers can also consider eliminating or substituting nonessential functions of the employee’s position, telework, or modification of work hours. The EEOC guidance includes a link to the Job Accommodation Network for additional suggestions.

Lastly, the EEOC reiterates the importance of the employer to maintain the confidentiality of employee medical information related to COVID-19. Any employee that must receive this information (i.e., an administrative employee assigned to perform recordkeeping of vaccinations) should be made aware that this information is confidential, and the employee can be subject to disciplinary action for unauthorized disclosure.

Employers should read the latest information on the EEOC, CDC, OSHA, and Kentucky Labor Cabinet websites and keep apprised of any COVID-19 developments. Contact KLC Personnel Services Manager Andrea Shindlebower Main for more information on this or any personnel-related matters.