The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.
EEOC guidance on testing
On July 12, 2022, the EEOC updated the guidance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.
In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
The EEOC’s updated guidance identifies seven factors that may help determine whether mandatory COVID-19 testing meets the “business necessity” criterion:
1. Potential contacts between employees and others while at work
2. The current rate of community transmission
3. The transmissibility of current variant(s) of the coronavirus
4. The severity of illness that may result from current variant(s)
5. Employees’ vaccination status
6. The potential for breakthrough infections among vaccinated employees
7. The “accuracy and speed of processing” for current COVID tests
Employers may need to consult the latest guidance from the CDC in order to assess many of the above factors.
The CDC issued “streamlined” guidance regarding COVID-19 safety measures on August 11, 2022. The safety measures recommended by the CDC are not legally binding, but New Jersey employers and employees alike are strongly urged to follow them.
Vaccination is still the primary measure recommended by the CDC. Beyond that, the agency has relaxed many of its recommendations:
– People who may have been exposed to the coronavirus are no longer urged to quarantine. Instead, they should “wear a high-quality mask for 10 days and get tested on day 5.”
– People who test positive for the coronavirus should still isolate themselves for at least five days. They should wear a mask until at least the tenth day, and avoid contact with “people who are more likely to get very sick from COVID-19” until the eleventh day.
New Jersey’s Earned Sick Leave and Temporary Disability benefits can help many workers follow these recommendations.
The knowledgeable and experienced employment lawyers at the Resnick Law Group represent employees, former employees, and job applicants in New Jersey and New York in claims for unlawful employment practices under federal and state law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your rights and options.