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Testing Your Persistence:  EEOC Revises COVID Testing Pointers


Whereas many now discuss with the COVID-19 pandemic as a factor of the previous, it’s something however gone. On the time this submit was drafted, optimistic COVID instances in California are averaging 20,000 per day, face masks are nonetheless prevalent, and because the EEOC reminds us, laws are nonetheless altering to replace new realities.

On July 12, the EEOC up to date its tips with respect to necessary screening procedures. On the outset of the pandemic, and till now, the company seen the People with Disabilities Act (“ADA”) commonplace for conducting medical examinations as having all the time been met with respect to COVID-19 viral testing. Now, in keeping with the EEOC, a COVID-19 viral take a look at could also be required as a compulsory screening measure “if the employer can present it’s job-related and according to enterprise necessity.”

The EEOC steerage requires employers to have a look at their very own particular person information and circumstances. Among the many components the EEOC asks employers to contemplate are “the extent of neighborhood transmission, the vaccination standing of workers, the accuracy and velocity of processing for several types of COVID-19 viral assessments, the diploma to which breakthrough infections are attainable for workers who’re “updated” on vaccinations, the convenience of transmissibility of the present variant(s), the attainable severity of sickness from the present variant, what kinds of contacts workers might have with others within the office or elsewhere that they’re required to work (e.g., working with medically weak people), and the potential impression on operations if an worker enters the office with COVID-19.” After all, these are solely two authorities companies with their palms within the cookie jar, and you will need to verify in on any CalOSHA tips, different regulatory companies with authority over your trade, and any native laws, to make sure you are in keeping with present practices.

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This truly brings the EEOC steerage in keeping with California. The Division of Honest Employment and Housing steerage has lengthy since couched necessary testing in the necessity to set up that it’s “job-related and according to enterprise necessity.” Particularly, the DFEH steerage offers that “Employers might require that workers undergo viral testing with a purpose to decide whether or not an worker has COVID-19 an infection, earlier than permitting an worker to enter the office. That’s as a result of an worker with COVID-19 is unable to carry out the worker’s important duties in a way that may not endanger the well being or security of others within the office even with affordable lodging there.”

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So is it protected to permit workers within the worksite with out testing? As long as the worker can carry out their duties with out endangering others, the reply is sure. However whether or not workers can truly do this requires a extra cautious evaluation, and common consideration to environmental circumstances reminiscent of present charges of COVID-19 transmission, worker vaccination charges, and the severity of sickness from present (and probably future) COVID variants.

As all the time, consult with skilled counsel earlier than implementing necessary screening measures to make sure that they adjust to the ever-changing tips and laws.