EEOC employer sanctions and updated COVID-19 guidance

In July, the Equal Employment Opportunity Commission (EEOC) announced that it had entered into a conciliation agreement with a dermatology practice for violating the Genetic Information Non-Discrimination Act (GINA) after it collected COVID-19 test results for employees’ family members.

The practice will pay compensatory damages and back pay, restore leave time to affected employees, review its COVID-19 policies and conduct training as part of the settlement.

GINA prohibits employers from requesting or obtaining medical information for employee family members, except as necessary to justify family leave. Employers should note that GINA generally prohibits employers from collecting their employees’ family health histories, even when the information is not traditionally considered genetic.

According to EEOC guidance, “genetic information” includes the manifestation of a disease or disorder in an employee’s family members. Agency directives are unambiguous in indicating that GINA prohibits employers from asking about the COVID status of employee family members. Rather, employers may only ask employees if they’ve had contact with anyone diagnosed with COVID or who may have symptoms.

Updated EEOC guidance

Just days after the settlement was announced, the EEOC updated its guidance related to COVID-19 testing, hiring and reasonable accommodations. (See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.”)

Highlights include the following:

• Employers can only test an employee for COVID-19 if they can show that testing is job-related and a business necessity. Considerations in addressing “necessity” include current pandemic and workplace circumstances. Examples cited include the level of community transmission, employees’ vaccination status, ease of transmissibility, the likelihood of breakthrough infections for vaccinated employees, types of contact in the workplace, the possible severity of the illness from current variants, and the potential impact on operations.
• Job applicants may be screened for COVID-19 if an employer screens everyone (e.g., employees, visitors, contractors) before permitting access to the workplace. Alternately, applicants can be screened after a conditional job offer, but again only when the employer screens all entering employees in the same type of job.
• Hiring. An employer may legally withdraw a job offer because of a positive COVID-19 test, symptoms, or exposure only if the job requires an immediate start date and requires close proximity to others at a time the CDC is advising against such proximity.
• Reasonable accommodation. Employees can request a reasonable accommodation because of a medical condition that puts them at higher risk of severe illness from COVID-19. Reasonable accommodation may include personal protective equipment (PPE), HEPA filtration, or barriers.
• Mandatory vaccinations. Employers may deny requests for exemptions to mandatory COVID-19 vaccines if the employee would pose a threat to the health of themselves or others based on factors such as community spread, work environment, and the effectiveness of potential accommodations.
• PPE and infection control. Whereas previous guidance was definitive that an employer could require PPE and infection control measures, the updated guidance uses the language “in most instances.” The guidance adds the use of HEPA filtration systems as a possible reasonable accommodation when an employee makes a request for a disability-related or religious accommodation.

In light of recent sanctions and the updated guidance, employers should review their COVID-19 practices and policies and consider strategies for minimizing risk.