On July 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) yet again updated its COVID-19 FAQs, revising earlier guidance about worksite screening through viral testing for COVID-19, modifying some Q&As, and making various generally non-substantive editorial changes throughout. According to the EEOC, it revised the guidance in light of the evolving circumstances of the pandemic. Here’s a run-down of the substantive changes in this latest iteration of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

When is worksite viral screening testing permissible?

Under the Americans with Disabilities Act (“ADA”), once an employee begins work, any disability-related inquiries or medical exams must be “job-related and consistent with business necessity.” At the outset of the pandemic, the EEOC’s guidance considered that this “business necessity” standard for conducting medical exams would always be met for employers conducting worksite COVID-19 viral screening testing. That has changed. The new guidance makes clear that the EEOC no longer considers viral screening to be automatically justified. Going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.

Specifically, the guidance states that employers that wish to implement viral screening must meet the “business necessity” standard based on the relevant facts and suggests factors employers may wish to consider in making the “business necessity” assessment:

  • level of community transmission;
  • vaccination status of employees;
  • accuracy and speed of processing of available COVID-19 viral tests;
  • degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
  • ease of transmissibility of the current variant(s);
  • possible severity of illness from the current variant;
  • what types of contacts employees may have with others in the workplace or other places they are required to be to perform their work (e.g., working with medically vulnerable individuals); and
  • potential impact on operations if an employee enters the workplace with COVID-19.

In considering whether to implement viral screening, the EEOC reminds employers to check the latest CDC guidelines, and any other relevant sources, to determine whether screening testing is appropriate.

Is this the end of workplace COVID-19 screenings?

The EEOC states that it does not intend to suggest, through its updated guidance, that screening through testing is no longer warranted, but only that that evolving pandemic circumstances now require individualized assessments by employers to determine whether testing is warranted, consistent with the ADA’s requirements.

Indeed, given the fact that the majority of the country continues to face high or medium rates of COVID-19 transmission, the new guidance may not have an immediate practical impact on the decision of whether to test. Employers that test (or wish to) should nevertheless consistently monitor the CDC and related public health authorities to remain up-to-date on relevant data and advice to support their ongoing decision-making.

The Interactive Process and Reasonable Accommodations

The EEOC’s updated guidance acknowledges that at the outset of the pandemic, issues such as disrupted work routines may have justified delays in an employer’s response to requests for accommodation, but notes that such issues may no longer exist. While novel issues, such as an increased number of accommodation requests as employers push to get employees back in the office, could still affect how quickly an employer can respond to requests and slow the interactive process, the guidance cautions employers not to assume that delays are always justified. As such, the EEOC advises that employers must endeavor to engage in the interactive process in a timely fashion.

The Hiring Process and Withdrawal of Job Offers

Previously, the EEOC guidance briefly stated that an employer could withdraw a job offer to an individual who was required to start immediately if the candidate has COVID-19 or symptoms of it because the individual “cannot safely enter the workplace.” The updated FAQ C4 expands on this guidance to advise that an employer may withdraw the offer if:

  • the job requires an immediate start date;
  • CDC guidance recommends the person not be in proximity to others; and
  • the job requires such proximity to others, whether at the workplace or elsewhere.

The updated guidance further suggests that in cases where only a short period of time is required for isolation or quarantine, an employer may be able to adjust a start date or permit telework (if job duties can be performed remotely). Additions to FAQ C5 remind employers that they may not postpone a start date or withdraw a job offer merely because the individual is older, pregnant, or has an underlying medical condition and the employer is concerned about the applicant’s well-being.

In addition, the updated guidance notes that if an employer screens everyone (i.e., 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 application process (e.g., for a job interview) may likewise be screened for COVID-19, but only to the same extent as those others.

Return to Work

While the COVID-19 FAQs previously advised that employers may be justified in requesting confirmation from a qualified medical professional that an individual is able to safely return to work (as either a disability related inquiry or a non-disability related inquiry), the updated guidance reminds employers that requesting such confirmation in disability-related cases is justified pursuant to ADA standards as long as the inquiry is job-related and consistent with “business necessity.” The EEOC continues to suggest that employers consider other ways to determine the safety of allowing an employee to return to work if doctors or other healthcare professionals are unable to provide such documentation in a timely manner. Alternatively, the guidance suggests that employers may follow CDC guidance to determine whether it is safe the allow an employee to return to the workplace after being out with COVID-19 without confirmation from a medical professional (i.e., at the end of an isolation period in accordance with CDC guidelines).

Personal Protective Equipment

The updated COVID-19 FAQs also expand upon the EEOC’s guidance regarding the wearing of employer-mandated personal protective equipment (“PPE”) and use of other infection control practices. The new guidance suggests that federal EEO laws permit an employer to require employees to wear PPE and to observe infection control practices in “most instances,” but does not provide examples of circumstances where such requirements are not permissible.

Flexibility for Older Employees

The updated FAQs elaborate on the EEOC’s guidance with respect to the protection of older employees, inasmuch as the risk for severe illness increases with age. While noting that, unlike the ADA, the Age Discrimination in Employment Act (“ADEA”) does not include a right to reasonable accommodation due to age, the EEOC goes on to state that the ADEA does not prohibit employers from providing flexibility to older workers, even if that results in younger workers being treated less favorably based on age. It is important to note, however, that some state and local laws define age discrimination more broadly than the ADEA, including to prohibit discrimination against younger employees. As such employers should be mindful of the applicable law(s) where they do business that might be implicated if older employees are favored to the detriment of younger ones.

Employer Recordkeeping and Confidentiality

The updated guidance also includes examples of when an employer may share confidential medical information (e.g., COVID-19 vaccination status or test results) with an employee who is required to use it to perform their own job duties. Examples include circumstances where:

  • an administrative employee is assigned to perform recordkeeping of employees’ documentation of vaccination and requires access to information for this purpose (but must keep such information confidential);
  • an employee is assigned to permit building entry only by employees in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking (but should only receive a list of the individuals who may or may not enter, but not any confidential medical information about why they are on or not on the list); or
  • an employee is tasked to ensure compliance with a testing requirement for employees would need to review testing documentation submitted by those employees (but must keep that testing information confidential).

Where to go from here?

Employers should consider reviewing their COVID-19 policies or practices to ensure they are consistent with the EEOC’s current guidance. For a thorough analysis, this may require a deeper dive into the latest CDC, state, or local health department guidelines, in addition to review of state and local anti-discrimination laws and regulations.

As featured in #WorkforceWednesdayThis week, we introduce Spilling Secrets, a new monthly podcast series on the future of non-compete and trade secrets law.

If you’re hiring from a competitor amid the Great Resignation, one of your top priorities is not getting sued. In our first Spilling Secrets episode, hear about the steps and tactics employers can use to mitigate non-compete and trade secrets litigation risks when hiring from a competitor.

Continue Reading <em>Podcast:</em> Spilling Secrets: Hiring from a Competitor? Don’t Get Sued. – <em>Employment Law This Week</em>

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The Council delayed the initial ban several times in response to feedback from employer groups.  However, barring an unlikely veto or Congressional action during the mandatory review period, the amended ban will take effect as of October 1, 2022.  We detail the key revisions to the ban below.

Continue Reading Washington, D.C. Scales Back Ban on Non-Competes

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, state legislatures across the country have accelerated their discussion of new laws either restricting or further protecting access to abortions.  A state senate bill in South Carolina, S. 1373 currently pending in the Senate Committee on Medical Affairs, would not only ban almost all abortions in that state, but would also afford novel whistleblower protections. Specifically, S. 1373 imposes criminal penalties, punishable by imprisonment for ten years, for persons who “take any action to impede a whistleblower from communicating about a violation of this article with the Attorney General, a solicitor, or any other person authorized to bring an action in violation of this article.”

Continue Reading South Carolina Abortion Bill Contains Harsh Criminal Penalties for Interfering with Whistleblowers

As featured in #WorkforceWednesday:  This week, we look at two U.S. Supreme Court decisions and legislation in California with major implications for employers and health care providers.

Continue Reading <em>Video:</em> Employers Respond to <em>Dobbs,</em> Implications of the Supreme Court’s EPA Ruling, and Pay Increases for CA Health Care Workers – <em>Employment Law This Week</em>

On June 7, 2022, the District of Columbia Council approved the Fiscal Year 2023 Budget Support Act of 2022 (“Act”), which includes an increase to the number of weeks of paid leave available to eligible employees through the Universal Paid Leave Act (“UPLA”) (also known as “Paid Family Leave,” or “PFL”).  Generally, as we previously explained, PFL-eligible employees are those who spend at least 50 percent of their work time – whether full time or part time – in D.C.

Continue Reading UPDATE: Washington, D.C. Universal Paid Leave Increases Will Begin October 2022

Exchange Act Rule 21F-17, adopted in 2011 under the auspices of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, prohibits any person from taking any action to impede an individual from communicating directly with the SEC, including by “enforcing, or threatening to enforce, a confidentiality agreement . . . .”  The SEC has prioritized enforcing this rule expansively, by requiring employers to provide SEC-specific carveouts to policies and agreements governing confidentiality.  According to an Order issued last week against The Brink’s Company ( “Brink’s” or “Brinks”), the SEC seems to suggest that employers must provide a specific carveout in restrictive covenant agreements permitting employees and former employees to report information to the SEC in addition to the statutory disclosure provided for in the federal Defend Trade Secrets Act (DTSA).

Continue Reading Employers Beware – SEC Renews Enforcement Initiative Against Agreements (This Time a Non-Compete) That Interfere with Whistleblowers’ Unfettered Access to the SEC

As featured in #WorkforceWednesday:  This week, we look at the significance of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the impact that the overturning of Roe v. Wade will have on employers.

Continue Reading <em>Video:</em> SCOTUS Overturns <em>Roe v. Wade</em> – What Employers Should Consider – <em>Employment Law This Week</em>

On June 15, 2022, the U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify as a “natural disaster” under the federal Workers’ Adjustment and Retraining Notification (“WARN”) Act, effectively foreclosing one important argument used by employers in defense of COVID-19-related WARN lawsuits.  As this is the only appellate court to affirmatively interpret WARN’s “natural disaster” exception, barring a split by other circuits, this case sets an important precedent in ongoing COVID-19-related WARN litigation, as well as WARN suits related to future pandemics.

Continue Reading Fifth Circuit Holds COVID Is Not a “Natural Disaster” Under the WARN Act

The United States Supreme Court (“SCOTUS”), in Dobbs v. Jackson Women’s Health Organization, has held that there is no constitutional right to abortion, overruling Roe v. Wade and Casey v. Planned Parenthood.

Continue Reading Preparing Corporate Messaging in the Wake of <em>Dobbs</em>