Amidst all the uncertainty of the COVID-19 pandemic, U.S. employers and their counsel found some well-deserved relief in EEOC’s March 2020 workplace pandemic guidance, plus its “What You Should Know About COVID-19” Q&A. EEOC confirmed—at least at that time—that the virus was “bad enough” that employers could do some things they normally couldn’t, specifically take employee temperatures and ask employees about certain symptoms. EEOC later confirmed employers could mandate vaccinations (subject to certain conditions including religious and disability-based exceptions).
It’s helpful to know what employers can do, but the question still remains: for how long can they do it? A careful read of EEOC’s guidance confirms that it’s temporary, as it describes employer abilities with easy-to-miss qualifiers like “during [a/the] pandemic…” With phrases like “new normal” being used in other contexts, some may have forgotten that employers’ abilities to (lawfully) delve into and regulate their workforce’s medical status will go away when the pandemic itself abates.
But how long will that be?
EEOC’s current guidance applies as long as the pandemic is “more severe” than seasonal flu or the 2009 H1N1 virus or it remains “widespread” in “the community” as assessed by public health authorities. Those aren’t exactly bright-line metrics. And they’re not in any statute or regulation. Again, close reading of EEOC’s guidance suggests these concepts are best understood as applying the traditional ADA concept of “direct threat” to a situation affecting many people simultaneously. Normally, employers face strict limits on asking employees about their medical condition or imposing medical conditions on employment unless the employer can prove the specific employee’s condition presents a serious enough risk in their specific workplace. But when an infectious disease gets “bad enough,” there just isn’t time for that. Individualized analysis gives way to group-based infection control tactics.
EEOC’s latest updates emphasize the need to assess safety threats on an individualized basis, and many metrics used for tracking the severity and spread of COVID-19 in various geographies suggest the disease is fading overall. That’s welcome news for public health, but also cause for employers to remain alert for ADA exposure. At some point, EEOC is likely to withdraw its “national dispensation,” permitting employee medical inquiries and/or restricting its view on vaccination requirements. Independently, pandemic metrics in particular locales may support individual employee claims that COVID-19 is no longer a big enough threat to justify certain company-wide mitigation practices. Employers would do well to periodically assess those practices in light of the fundamentally “expiring” nature of EEOC’s ADA guidance.
Joe Pettygrove is a partner at KGR, and he advises management on a wide variety of employment and business issues. This article was originally published in Best Lawyers All Rise newsletter. KGR is ranked in 12 specialties for the 2021 Edition of U.S. News – Best Lawyers® “Best Law Firms.”
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