EEOC update to COVID guidance is ho-hum

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.)