Workplace COVID rules in shift 

Workplaces have come a long way since COVID first hit, and as the virus has evolved so have the rules around it.

With that said, the U.S. Equal Employment Opportunity Commission, which enforces federal laws prohibiting employment discrimination, has released updated COVID-19 guidance for employers that addresses, among other things, testing.

“As we go through the process of living through the pandemic there are going to be changes because it's continually evolving,” says Domenique Camacho Moran, a partner at Farrell Fritz in Uniondale. In fact, the Centers for Disease Control and Prevention also just relaxed rules around measures like quarantining, social distancing and testing. See https://tinyurl.com/2p8d5b2a

“The CDC’s updated guidance doesn’t undermine or supersede the EEOC’s guidance,” says David Mahoney, a partner and chair of the labor and employment law group at SilvermanAcampora LLP in Jericho. “If anything, it provides context for why and how the EEOC has tailored its updated guidance.”

One notable change from the EEOC addresses whether an employer, as a mandatory screening measure, can administer a COVID-19 viral test (a test to detect the presence of the virus) when evaluating an employee’s initial or continued presence in the workplace. The answer is yes, “if the employer can show it is job-related and consistent with business necessity,” the EEOC says.

Before this updated guidance there "was a presumption that the need for worksite COVID-19 testing was a business necessity" and was therefore allowed under the Americans with Disabilities Act, Camacho Moran says.

Now as the pandemic’s evolved, the updated guidance says employers must make individual assessments to determine whether there’s a business necessity for testing, she says.

While the EEOC provides possible considerations when making an assessment, including level of community transmission, Camacho Moran thinks this change "makes it more difficult for employers to establish a business necessity for testing."

Tougher test for testing

Now, she explains, it's presumably harder to make a case for testing because more people are vaccinated and the severity of COVID has lessened.

“The updated guidance acknowledges that policies and restrictions will continue to evolve as we continue to collect more information about COVID and how it can affect the workplace,” says Mahoney.

In general, he finds employers aren’t as focused on routine testing of existing employees and applicants as they were a year ago.

For one, employers have a better handle on what measures can be taken in the workplace to avoid the spread of COVID-19, he says.

John Coverdale, president of the Center for Workplace Solutions, a Bayport-based HR management consulting firm, agrees.

“The past six months there’s been in some cases a reduction of precautions, including on-site testing,” across all categories of people in the workplace, including prospective hires, he says.

The guidance addresses the screening of applicants, Coverdale says.

Normally, under the ADA, disability-related inquiries and medical exams are generally prohibited prior to making a conditional job offer to an applicant. 

The revised guidance says if an employer screens everyone (such as applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the process, such as for a job interview, may likewise be screened.

Screening vs. exams

For most employers, screening generally isn’t a medical examination, says Myra Creighton, a partner in Fisher Phillips’ Atlanta office, who addresses the updated guidance at https://tinyurl.com/bdf2dyd5

For example, asking "do you have a temperature" is different from taking someone’s temperature, she says. The latter’s considered a medical exam, Creighton says.

The EEOC’s statement that you can screen applicants coming into the building for an interview if you screen everyone else means if even the “delivery guy and copier guy all have to submit to screening to enter the workplace, then you’re fine.” Otherwise you cannot screen applicants, she says.

Another distinction in the updated guidance is it makes clear employers aren’t required to make accommodations for employees based on age alone, Mahoney says. However, employers are free to provide flexibility to older workers, the EEOC says.

However, employers should ensure that they promptly engage in dialogue with all individuals that have qualifying disabilities, he says. See https://tinyurl.com/2xyutf8j 

Given the overall guidance, employers should review their present policies and if the employer has a virus testing program they “may want to reconsider or re-evaluate whether that program is necessary and meets requirements under the ADA,” Creighton says.

By Jamie Herzlich

jherzlich@aol.com

Herzlich writes the Small Business column in Newsday.