EEOC reviews compliance with Disability Discrimination Act

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) revised its advice on complying with the Disability Discrimination Act during the COVID-19 pandemic. While previous guidance, originally issued on December 14, 2021, provided that viral COVID-19 testing was permitted for on-site employees and did not violate the Americans with Disability Act (ADA) due to the health and safety priorities of the pandemic, recent updates to the EEOC now only authorize viral screening and testing measures when such measures are job-related and consistent with business necessity, maintaining the COVID-19 testing at the same level as other workplace medical tests. The July 12 update “clearly indicates that going forward, employers will need to assess whether the current pandemic circumstances and individual workplace circumstances warrant viral testing of employees to prevent transmission of COVID-19. in the workplace,” the EEOC said.

IN DEPTH

Updated EEOC guidance explains that to remain ADA compliant, any virus testing program, which is considered a medical exam under the ADA, must be “job-related and compliant.” commercial necessities”. This is in line with the EEOC’s pre-pandemic guidelines regarding subjecting employees to medical examinations. The latest EEOC guidance clarifies that implementing viral testing to screen employees before they return to the office after being exposed to or contracted COVID-19 will generally meet the “business necessity” requirement. as long as testing procedures meet current US guidelines. Occupational Safety and Health Administration (OSHA), Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and other public health authorities. In addition, the EEOC lists some factors employers can consider, including:

  • The level of community transmission;

  • The vaccination status of employees;

  • Accuracy and timeliness of obtaining test results;

  • The possibility of breakthrough infections among vaccinated employees;

  • The transmissibility of the current variant of COVID-19;

  • The possibility of serious illness resulting from infection with the current variant;

  • The nature of contacts employees may have at the workplace or in any other place where they are required to work (for example, assisted living or nursing homes, hospitals or other medical centers with a number high number of medically vulnerable people); and

  • The impact on operations if an employee infected with COVID-19 is present in the workplace.

Employers should also consider reasonable accommodation obligations, if any, before making any decisions.

SCOPE OF UPDATED GUIDELINES

It is important to note that the updated guidelines only relate to viral test. Employers remain prohibited from requiring antibody tests for employees to return to work. The EEOC guidelines do not distinguish between home-verified and lab-verified results.

TAKE AWAY FOOD

After this most recent update to the EEOC’s COVID-19 guidance, employers will need to reassess all mandatory virus testing policies before employees return to work, unless those policies are implemented. in response to OSHA, CDC or other similar obligations. Employers should also be aware of their obligations under relevant national or local law; for employers with a multi-site workforce, they may need to implement various testing requirements based on applicable law and community transmission rates.

Additionally, the updates encourage employers to complete individual assessments under the ADA and to consider certain factors when conducting this evidence-based analysis. Employers should contact their attorney McDermott to discuss how the EEOC’s “business necessity” analysis may be involved in the ongoing COVID-19 waves.

Laura Sabia, summer associate in the Boston office, also contributed to this article.