March 31st, 2021 | Angela Preston, Senior Vice President & Counsel, Corporate Ethics & Compliance
Covid-19 Testing and Vaccines: An EEOC Update and What Employers Need to Know
The pandemic continues to up-end the workplace, and by all estimates the disruption will continue for the foreseeable future. With promising new vaccines coming into the market, the workplace is reopening, and regulations and guidance for the workplace continue to change. Testing, which is now available in many forms, will continue to be a key part of safety in the workplace. Employers need to know what the latest guidance is regarding testing and vaccines, and what it means for business and workers.
As reported in other updates, the federal guidance from the EEOC allows employers to require testing as a condition of entering the workplace, due to the risk of lethal harm associated with Covid-19. Testing is permitted as long as it is consistent with CDC guidance, is accurate and reliable, is job-related, and does not otherwise discriminate.
The interest in antibody testing has waned, since the CDC and the EEOC continue to disallow the use of antibody testing in workplace decisions. And although effective vaccines are now available, a main focus for the workplace continues to be on screening employees and testing to determine whether an individual is infected with the virus. Until more is known about how vaccination impacts transmission, testing will continue to play a vital role in maintaining a safe workplace and detecting the active virus–particularly for those who are asymptomatic and in outbreak situations.
With different types of tests in the marketplace, the science continues to evolve. PCR (polymerase chain reaction) tests that have been approved by the FDA are recognized as sufficient to meet the accurate and reliable standard of the CDC and EEOC, and thus may be used in the workplace. The verdict is still out on the use of antigen tests, or so-called “rapid tests”. The FDA has generally authorized use only for symptomatic people, and a follow-up PCR test may be required for use in a workplace setting.
Other legal considerations for employers include obtaining the proper notice and consents from employees, including following state and federal requirements for collection, consent for conducting the test and disclosure of the results. These requirements can vary depending on location and the entity collecting the specimen, conducting the test, and reporting the results. Consult with your legal counsel to make sure that the proper consent has been collected and exchanged between all of the relevant parties.
Some states, such as California, have imposed rigorous requirements on employers for testing and Covid-19 prevention. California’s Division of Occupational Safety and Health (“Cal-OSHA”) adopted broad emergency regulations that establish requirements for having a written plan, special notification of exposure, continuation of pay, and no-cost testing to all employees with possible exposure in the workplace. The time an employee uses to be tested is compensable. California employers are encouraged to seek guidance from counsel to ensure that they are compliant with these expansive requirements.
With the recent rollout of vaccines, the EEOC issued guidance for employers who want to use vaccines as part of their workplace safety program. Unlike a Covid-19 test, the administration of the vaccine itself is not a medical exam, and thus does not fall under the ADA. However, pre-vaccine questions that would typically be asked prior to administration of the vaccine are disability-related and thus fall under the ADA, with two exceptions: one, if the vaccine itself, and the related questions, are voluntary, or two, if the questions and the administration of the vaccine are handled by a third party such as a pharmacy.
The EEOC has clarified that a vaccine-related questionnaire response is confidential medical information and must be kept confidential.
Generally, employers may ask employees to show proof of a vaccine as a condition to enter the workplace. Employers should refrain from asking why an employee did not get vaccinated to avoid a possible ADA violation. The EEOC calls out that questions about vaccinations must be done in a manner that does not disclose a disability. If a safety-based vaccination requirement screens out an individual with a disability, the employer may need to make a reasonable accommodation if it does not result in undue hardship. Be sure to train employees on how to recognize and respond to accommodation requests.
In addition to disabilities or ADA related concerns, some employees may not get vaccinated due to a religious belief or practice. In such situations, employers may need to provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act. EEOC guidance explains that because the definition of religion is broad, employers should ordinarily assume that an employee’s request is based on a sincerely held religious belief.
In all of these scenarios, the EEOC cautions that an employer should not automatically terminate the worker who cannot meet a vaccine requirement. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities, and are encouraged to work with employees for remote work opportunities and creative solutions.
Putting together a plan that considers screening for Covid symptoms, testing for active virus infection, responding to outbreaks, and requiring vaccination when available is critical for establishing a safe workplace. Be sure to consult with your legal counsel to arrive at a strategy that is best for your employees, your culture and values, and your business.
This blog post is part of a Compliance blog series, diving into compliance trends, best practices, and updates.
Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.