Although it has been over two years since our first article concerning COVID-19, it is still making the news with updates from both the Centers for Disease Control and Prevention (“CDC”) and the Equal Employment Opportunity Commission.
REVISED ISOLATION GUIDANCE
Recently, the CDC revised its COVID-19 guidance concerning what do to if an individual is exposed to COVID-19 or has COVID-19. Notably, the CDC no longer requires individuals who have not been vaccinated or are not up to date on their vaccinations to isolate after exposure. Rather, the CDC now recommends that individuals (regardless of vaccination status) who have been exposed to COVID-19 wear a high-quality mask, such as an N95, for ten full days after exposure and test after five days. If an individual tests negative, the individual should still continue to wear a high-quality mask until the expiration of the ten-day period. If the individual tests positive, then the individual should isolate immediately.
Individuals may end isolation after five days from the date of a positive test (or symptom onset if they develop after the positive test) if the individual either 1) had no symptoms or 2) had symptoms and the symptoms are improving and the individual is fever free for 24 hours without fever reducing medication. Individuals should still wear a mask through day ten, unless the individual receives two negative antigen tests at least 48 hours apart prior to the expiration of the ten-day period.
Employers should review their policies concerning returning to work after a known exposure or positive test result to make sure that they are consistent with this new CDC guidance.
COVID-19 AND THE ADA
Over the summer, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to reflect the changing landscape of COVID-19. These updates include guidance on mandatory screening tests, returning to work, pre-employment screening and job offers, reasonable accommodations and confidentiality of test results, among other topics.
MANDATORY SCREENING TESTS
Of particular importance, the EEOC has clarified that an employer may only implement mandatory screening tests for COVID-19 if the employer can show that the screening testing is job-related and consistent with business necessity in accordance with the Americans with Disabilities Act (“ADA”). In determining whether screening testing meets the “business necessity” standard, employers should consider:
• The level of community transmission;
• The vaccination status of employees;
• The accuracy and speed of processing for different types of COVID-19 viral tests;
• The degree to which breakthrough infections are possible for the 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);
• What types of contacts employees may have with others in the workplace or elsewhere with whom they are required to work (e.g., working with medically vulnerable individuals); and
• The potential impact on operations if an employee enters the workplace with COVID-19.
The EEOC cautions that in making these assessments employers should review the latest CDC guidance and other relevant sources to determine whether a screening test is appropriate for employees. The EEOC also clarifies that in accordance with CDC guidance, an antibody test does not meet the ADA’s business necessity standard for medical examinations or inquiries for employees and cannot be required before allowing employees to re-enter the workplace.
RETURNING TO WORK
The EEOC points out that the ADA does allow an employer to require a note from a qualified professional explaining that it is safe for an employee to return to work and that the employee is able to perform the job duties after an employee is out of work due to COVID-19. The EEOC also states, however, that employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.
PRE-EMPLOYMENT SCREENING AND JOB OFFERS
Under the updated EEOC guidance, an employer may screen an applicant for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job. An employer may screen an applicant in the pre-offer stage only if the employer screens everyone (i.e., applicants, employees, contractors, visitors, etc.) before permitting entry to the workplace and if the screening is limited to the same screening that everyone else undergoes.
If an applicant tests positive for COVID-19, has symptoms of COVID-19, or has been exposed recently to COVID-19, an employer should consult with CDC guidance to determine when the individual may enter the workplace. The EEOC explains that an employer may withdraw a job offer if 1) the job requires an immediate start date, 2) the CDC guidance recommends the person not be in proximity to others, and 3) the job requires such proximity to others, whether at the workplace or elsewhere. Employers should be careful to consider a revised start date or temporary telework given that for some individuals there may be only a short period of time required for isolation.
While an employer may withdraw a job offer under the above conditions, an employer may not postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant or has an underlying medical condition that puts the individual at risk from COVID-19. If the individual has an underlying medical condition that is a disability, the employer must determine whether the individual’s disability poses a “direct threat” by starting immediately and, if so, what reasonable accommodations can be made.
The updated EEOC guidance makes clear that an employee or a third-party, such as the employee’s physician, must let the employer know that the employee needs a reasonable accommodation because the employee has one of the medical conditions that the CDC says may put a person at higher risk for severe illness from COVID-19. After receiving a request for accommodation, the employer may ask questions or seek medical documentation to help decide if the individual has a disability under the ADA and if there is a reasonable accommodation, barring undue hardship, that can be provided. When the employer knows that an employee has one of these conditions and is concerned about the employee’s health, but the employee has not requested a reasonable accommodation, the employer is generally not required to take action in this situation. As a reminder, the ADA requires that an employee’s disability pose a direct threat to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodation before an employee may be excluded from the workplace.
If an employee does need a reasonable accommodation, the EEOC provides examples that these accommodations might include additional or enhanced protective gear, air filtration measures, increasing space between the employee and others, the elimination or substitution of “marginal” functions, telework, modifications of work schedules, or moving the location where the individual performs work.
CONFIDENTIAL MEDICAL INFORMATION
An employee’s COVID-19 test results and vaccine status are confidential medical information under the ADA. This information may be shared with employees who need it to perform their job duties, but those employees must also keep the information confidential.
Employers should also be aware that the EEOC recently resolved a claim under the Genetic Information Non-Discrimination Act (“GINA”) where the employer was collecting employees’ family members’ COVID-19 testing results. In the press release, the EEOC explained that GINA prohibits employers from requesting or requiring genetic information about applicants’ or employees’ family members and that “genetic information” includes the manifestation of a disease or disorder in an employee’s family members.
WHAT TO DO NOW
Now is a good time for employers to review their COVID-19 policies and procedures to make sure that they are in compliance with state and federal law and regulatory guidance. Policies written during the early stages of the pandemic may not reflect the changes in what we know now about COVID-19 and may not be in compliance with current laws, such as Florida Statute § 381.00317, which prohibits a private employer from imposing a COVID-19 vaccination mandate without providing certain individual exemptions.
Employers can review the full, updated EEOC guidance at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is an associate in the Clearwater office whose practice focuses on Labor and Employment Law.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION