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It Ain’t Over Till It’s Over – EEOC Issues Updated Guidance as COVID-19 Pandemic Lingers

Labor & Employment Otto Immel, Lindsey Davis, Kaitlin Phillips, Brenna Wildt, Amanda Collins

With the proliferation of COVID-19 vaccines and emergence of less deadly strains, many employers have put their COVID-19 related policies and procedures on the back burner. However, as President Biden’s recent back-to-back illnesses have shown, the pandemic is far from over. The current “silent” wave of infections by an extremely transmissible variant has shown that COVID-19 remains a concern for employers. Indeed, the Equal Employment Opportunity Commission (EEOC) recently issued guidance relating to workplace COVID-19 polices on testing and return to work. Further, the Centers for Disease Control and Prevention (CDC) continues to regularly update its recommendations relating to quarantine, masking, and vaccinations.

Summarized below are important takeaways for employers with respect to these recent developments.

What are the current CDC guidelines with regard to quarantining after COVID-19 exposure or illness?

Current quarantine periods for COVID-19 exposure depend largely on an individual’s vaccination status. If an employee was exposed to COVID-19 and is not “up to date” on vaccination (i.e., full course of a COVID-19 vaccine plus a booster), the CDC recommends that the employee quarantine for five days and wear a mask for the next five days.

Note: To date, the CDC has not revised their definition of “fully vaccinated” which is still considered to be two weeks after the second dose in a two-dose series or two weeks after the single-dose vaccine. The quarantine guidelines instead refer to being “up to date” with vaccination, which includes a booster.

  • If the employee is up to date and was exposed to COVID-19, the employee need not quarantine but should wear a mask for ten days.
  • If an employee was exposed to COVID-19 but had a confirmed positive COVID-19 test within the last 90 days, the employee need not quarantine—regardless of vaccination status. Instead, the CDC recommends the employee wear a mask for ten days.

Current quarantine periods for a positive COVID-19 test result are a bit different. If the employee has tested positive for COVID-19 or is showing symptoms, the CDC recommends that the employee isolate for five days and wear a mask for the following five days—regardless of vaccination status.

Can I require my employees to test for COVID-19 on a regular basis as a condition for coming to work?

Not necessarily. Previous EEOC guidance indicated that employers could require COVID-19 testing across the board, either on a regular basis or for diagnostic purposes. Under new EEOC guidance, employers may not require employees to take a COVID-19 test unless current pandemic circumstances and individual workplace circumstances make testing a “business necessity.”

Determining whether COVID-19 testing is a business necessity depends on a number of factors, including the current level of community transmission in the area, the vaccination status of the employee, whether current variants can cause severe illness and/or are highly transmissible, and the types of contacts the employee may have with other individuals. Because this “business necessity” determination is highly fact-specific and based on ever-changing conditions, employers should consult counsel before requiring employees to take COVID-19 tests.

My employee informed me he took an at-home COVID-19 test and tested positive. What are my options?

Because the CDC currently recommends that any individual who has tested positive for COVID-19 isolate for five days, and mask for an additional five days, you may require this employee to quarantine and mask. If you do so, you should be sure to apply that policy across the board to employees in similar jobs/work environments.

Additionally, you may require this employee to confirm the results of an at-home test with an additional at-home test or a test at an official testing facility (such as a doctor’s office or pharmacy) if such a requirement is job-related and a business necessity. Given the likelihood that an employee who has tested positive has COVID-19 and could spread it to others, it is likely most in-person workplaces could meet this standard. Accordingly, many employers may most likely require employees who have tested positive using an at-home test to confirm that result.

Can I require employees to take COVID-19 antibody tests?

No. The EEOC recently clarified that employers may not require antibody tests from employees because the CDC has indicated those tests cannot determine whether someone currently has an infection, can transmit COVID-19, or is immune to COVID-19.

Can I require potential employees to take a COVID-19 test as a condition of hire?

Yes, but only if all entering employees for the same type of job are required to do so. If the applicant tests positive, the employer may only withdraw the job offer if (1) the job requires an immediate start date; (2) current CDC guidance recommends that the person not be in proximity to others; and (3) the job requires proximity to others. Alternatively, employers may adjust a start date or permit telework upon a positive COVID-19 test.

I’ve determined I can require an employee to take a COVID-19 test. Do I have to pay for that test? Do I have to pay the employee for their time obtaining that test?

In some states, yes. For example, California, Illinois, Montana, New Hampshire, North Dakota, and South Dakota have all passed laws that require employers to reimburse employees for work-related expenses, including required COVID-19 testing. Further, employers should note that the Fair Labor Standards Act (FLSA) may require employers to pay their employees for the time spent obtaining a COVID-19 test. Employers are advised to consult their local Quarles & Brady attorney to determine whether they must pay for a COVID-19 test in their state.

In light of this ever-developing guidance from the CDC, EEOC, and other agencies, employers should review their COVID-19 policies for reporting positive tests, exposure, and symptoms to ensure compliance with the most up-to-date guidelines, and renew efforts to enforce the same. Quarles & Brady continues to monitor important legal developments relating to the evolving COVID-19 pandemic, and is always available to answer questions relating to your workplace. If you are seeking guidance on updating or implementing your policies, or have any other questions, please contact your Quarles & Brady attorney, or:

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