Allison N. Genard, Esq., Campbell Durrant, P.C. | August 2022
Municipalities need to revisit their COVID-19 testing and vaccines policies in light of changing standards from government agencies. Since the early days of the pandemic, the Equal Employment Opportunity Commission (“EEOC”) and Centers for Disease Control and Prevention (“CDC”) have issued guidance for employers on how to handle testing and vaccine policies to control the spread of COVID-19 in the workplace. The guidelines and recommendations are available on the agencies’ websites. Previously, employers could mandate vaccination or testing of their employees without violating the Americans with Disabilities Act (“ADA”) regardless of community transmission and hospitalizations if the testing is job-related and consistent with business necessity.
On July 12, 2022, the EEOC issued updated answers to Technical Assistance Q&A’s for employers for the next phases of the COVID-19 pandemic. The EEOC made clear that 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. If current circumstances are not justified, employers should update their policies. The EEOC warns that this change is not meant to make employers think testing is not warranted any more. Rather, employers should consider the following circumstances when determining whether testing still meets the “business necessity” standard:
- Level of community transmission
- Vaccine 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 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
- What types of contacts employees may have with others in the workplace or elsewhere that they are required to work with
- The potential impact on operations if an employee enters the workplace with COVID-19
Another consideration employers should keep in mind is the prevalence of at-home testing and the impact on the above categories. Many individuals are relying on at-home testing now but not reporting positive tests to health authorities. Employers should consider each of these facts in reassessing whether testing should continue or be reinstated within the municipality and its various departments.
Once the business necessity test is met, the EEOC instructs employers to also refer to CDC, Food and Drug Administration (“FDA”), and/or state/local public health authority guidance on whether screening testing is appropriate for these employees. The CDC still relies on the update from October 6, 2021 for testing recommendations in non-healthcare settings. The update provides information to employers on how to choose the type of testing that is appropriate for the workforce and employer. The CDC states that employees should receive clear information on the manufacturer and name of the tests being used and how to understand the results. The CDC also provides information regarding how various tests and vaccinations work.
It is recommended that employers regularly review their policies on testing requirements, methods, and needs. Employers should look to their county and state health departments for local COVID-19 vaccination, infection, hospitalization and death rates. If testing is no longer a business necessity, your policies should be updated to reflect changes to testing. If you have any questions about changes you may need to implement with your workforce, Campbell Durrant is happy to help discuss your options.