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Labor Law

Labor Law: Workplace implications for evolving Covid-19 restrictions

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RTD Metro Business law columnist, Karen Michael.

Two federal agencies — the Equal Employment Opportunity Commission and the Centers for Disease Control & Prevention — have indicated that it’s time to minimize the disruption of COVID-19 in our lives, and that includes the workplace.

Employers have been grappling with their COVID policies as the pandemic wanes. Last month, the EEOC updated its pandemic guidance. Earlier this month, the CDC announced it was “streamlining” its guidance.

Vaccines and testing

Under former Gov. Ralph Northam, employees working for the commonwealth were required to show proof of a COVID-19 vaccine or submit to regular testing. While this policy ended when Gov. Glenn Youngkin took over in January , a routine “get vaccinated or test” policy would no longer be legal, according to the EEOC.

Employers can now implement mandatory screening measures (such as viral tests) only if the employer can show that the testing is “job-related and consistent with business necessity.” The EEOC said it would no longer presume that COVID-19 testing is “job-related and consistent with business necessity” which previously had been the case during the pandemic to comply with the Americans with Disabilities Act.

In determining whether testing is a “business necessity,” employers can consider a variety of factors such as the level of community transmission, the vaccination status of employees, the accuracy of speed in processing the tests, the population the workforce serves, among other factors.

The EEOC suggests that, in making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.

The CDC announced in its news release, “Recommending screening testing of asymptomatic people without known exposures will no longer be recommended in most community settings.”

Thus, taken together, employers should stop testing asymptomatic employees unless there is a shown business need.

The EEOC noted that employers are also not permitted to require employees to submit to antibody testing (to show prior infection or possible immunity) before re-entering the workplace, unless doing so meets the “business necessity” requirement.

Symptoms screening

Employers are still permitted to screen for COVID-19 symptoms for those employees entering the workforce, but should not screen employees working remotely.

Employers are also permitted to screen job applicants for symptoms of COVID-19 after making a conditional job offer, so long as it does so for all employees entering the workplace for similar jobs. If an employer screens everyone entering the workplace (including visitors) for symptoms, the employer can also screen job applicants who enter the workplace pre-offer (i.e.: for job interviews). However, this screening is limited to the same as that given to everyone.

Time away from work

According to the CDC, those who have been exposed to someone testing positive for COVID-19, even those who are not up to date on their vaccines, no longer need to quarantine. The CDC instead recommends that the individuals wear a mask for 10 days and get tested on day five of exposure.

Employers should advise employees of this new recommendation from the CDC, and no longer require employees to take leave (paid or unpaid) following exposure, unless the individual has symptoms and/or tests positive for the infection.

Employers should recommend mask-wearing for the recommended 10- day period while around other employees or customers.

The CDC still recommends isolation for those with symptoms until they can be tested, and then additional isolation if a person tests positive. Symptomatic individuals who test negative for COVID can end isolation and return to the workplace.

Employees testing positive for COVID-19 should remain out of the office for five days, and if they are fever-free for 24 hours without the use of medication and their symptoms are improving (or they never had symptoms) they can return to the workplace after five calendar days in isolation, according to the CDC. When they return to the workplace, employees should wear a high-quality mask until day 10.

Hiring and COVID-19

In previous guidance, the EEOC advised employers it could withdraw a job offer for anyone testing positive, or who has symptoms of COVID-19, or who had been exposed to someone with the virus. Now, employers must comply with the CDC guidance on whether the person can safety return to the workplace.

The new CDC guidance which eliminated quarantine rules for those exposed to someone testing positive, and minimizing the time when someone who tests positive to just five days, calls into question whether a job offer can be rescinded.

Employers are also no longer required to contact trace infected individuals other than health care settings and high-risk congregate settings.

All of these are recommendations from the CDC but businesses should implement additional protections as they deem appropriate.

Karen Michael is an attorney and the president of Richmond-based Karen Michael PLC and author of “Stay Hired.” She can be reached at stayhired@stayhired.net.

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