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Updated EEOC COVID-19 Guidance

Jul 21, 2022

We are halfway through 2022, and our approach to COVID-19 continues to evolve as the pandemic enters a new phase. Recently, the Equal Opportunity Employment Commission (“EEOC”) updated its guidance for employers who want to require COVID testing of employees. Prior to this updated guidance, employers could presume that the Americans with Disabilities Act (“ADA”) standard for conducting medical exams was always met for COVID-19 screening testing.


Now, according to the EEOC, employers can still require COVID-19 tests “if the employer can show it is job-related and consistent with business necessity.” The EEOC explains that a COVID-19 viral test is a medical exam under the ADA, and an employer must show that it is “job-related and consistent with business necessity.” The EEOC urged employers to consider the most recent CDC guidance, and provide a list of eight possible considerations to use in determining whether the new "business necessity" standard for COVID screening is met:


  • the level of community transmission;
  • the vaccination status of employees;
  • the accuracy and speed of processing for different types of COVID-19 viral tests;
  • the degree to which breakthrough infections are possible for employees who are "up to date" on vaccinations;
  • the ease of transmissibility of the current variant(s);
  • the possible severity of illness from the current variant(s);
  • what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and,
  • the potential impact on operations if an employee enters the workplace with COVID-19.


As a general rule, businesses should remember that any disability-related inquiry or medical exam of an employee, including COVID-19 testing, must be job-related and based on a business necessity. An employer must have sufficient objective evidence to determine either that an employee poses a significant risk to themselves or others, or that the employee's ability to perform essential job functions is impaired.


The updated guidance also confirms that employers can require employees who have been out sick with COVID-19 to submit a doctor’s note clearing them to return to work. The guidance adds that employers have other options that do not require confirmation from a medical professional, including following CDC guidance on quarantine and isolation.


This updated guidance is a reminder to employers that they should continue to evaluate their COVID-19 practices to ensure they are complying with the latest evolutions in state and federal law as they try to maintain a safe and productive workplace.


If you have any questions regarding the updated EEOC COVID-19 Guidance, or any related issues, please do not hesitate to contact the attorneys at The Royal Law Firm, LLP.

ALERT: EEOC Releases Workplace Guidance to Prevent Harassment

01 May, 2024
On April 29 th , 2024, the U.S. Equal Opportunity Commission (EEOC) finalized their guidance in harassment in the workplace after receiving and responding to nearly 38,000 public comments on the proposed guidance released on October 2, 2023. The renewed guidance provides numerous clarifying hypotheticals, and addresses more recent issues including protections for LGBTIQA+ employees and remote work. Of note, the EEOC clarified the scope of sex discrimination and harassment, stating that federal protections under Title VII extend to LGBTIQA+ employees. Specifically, the EEOC made clear that the scope of harassment extends to repeatedly and intentionally misgendering employees or denying access to bathroom facilities that align with their gender identity. Further, this guidance reminds employers that discrimination and harassment based on “sex” includes harassment based on pregnancy, childbirth and related medical conditions, which include employees’ decisions related to contraception and abortion. Several public comments suggested that these guidelines infringed on free speech and religious rights. The EEOC did not directly address these concerns, instead stating that free speech and religious rights issues are fact-specific and would be addressed on a case-by-case basis. Further, the EEOC updated guidance related to the remote work environment. The EEOC clarified that conduct in a virtual work environment, including electronic communications using private phones, computers, or social media accounts can contribute to a hostile work environment if they impact the workplace. The EEOC also clarified that conduct occurring outside of the workplace, including on social media, which does not target the employer or its employees and is not brought into the workplace generally will not contribute to a hostile work environment. Finally, the EEOC updated its Anti-Harassment Policy Requirements, stating that an anti-harassment and discrimination policy should be widely disseminated to employees, in a manner that is understandable by all employees and includes i) a definition of prohibited conduct, ii) a requirement that supervisors report harassment, iii) multiple avenues for reporting harassment, iv) a statement that clearly identifies accessible points of contact for reporting purposes, and v) an explanation of the complaint process, including adequate anti-retaliation and confidentiality protections, and prompt and effective investigation and corrective action. You can read more about the EEOC's ruling on their website by clicking here . If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Non-Compete Agreements Are in Jeopardy

26 Apr, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a final rule banning non-competition agreements for all employees except for very narrow exceptions. The FTC’s Final Rule banning all non-competition agreements is effective 120 days after its publication in the Federal Register, which is expected in the next few days.  As of the effective date, all non-competition agreements are banned, except for franchisor/franchisee relationships and for sales of a business between buyer and seller. The FTC’s Rule is retroactive, prohibiting certain non-competition agreements before the effective date of the Rule as well. Existing non-competition agreements can remain in effect as to senior executives, which are defined in the Rule as employees in “policy-making positions” making at least $151,164 annually. The FTC’s Final Rule is already being challenged through the court system and a challenge from the Chamber of Commerce will most likely follow suit. Therefore, if an employer has existing non-competition agreements, the employer may not need to rescind them just yet. Stay tuned for updates as these challenges take their due course.
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