18

July, 2022

EEOC Removes Employers’ Blanket Authorization to Test Employees for COVID-19

Responding to the evolution of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has concluded that we are past the emergency stage when it was always considered appropriate for employers to require screening tests of employees for COVID-19.  Updated guidance provides that, going forward, employers will need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA).  Most significantly, this requires that any mandated test be “job-related and consistent with business necessity.”

When COVID Testing Is a “Business Necessity”

The EEOC explained that “business necessity” is met in various circumstances:

  • To comply with government requirements or guidance – If guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, or state or local public health authorities recommends COVID-19 testing, then employers’ compliance with those guidelines will be considered a “business necessity.”
  • Based on likelihood of infection and transmission – This requires employers to weigh the relevance and impact of a range of factors, including: the level of community transmission, the vaccination status of employees, the accuracy and speed of processing various types of COVID tests, the degree of breakthrough infections among employees who are current on their vaccinations, the ease of transmissibility of the current variant, the possible severity of illness from the current variant, the types of contacts employees may have with others in the course of their work, and the potential impact on operations if an infected employee enters the workplace. The EEOC’s guidance does not elaborate on the weight to be accorded to any specific factor, or how many factors need to be present to reach the level of “business necessity,” but it does advise employers to check the latest CDC guidance to determine whether screening testing is appropriate based on the listed factors.
  • If an individual is exhibiting symptoms in the workplace – On an individualized basis, an employer may require further screening or COVID-19 testing if the employee at work is exhibiting symptoms or an employer otherwise has a reasonable belief based on objective evidence that the individual has COVID-19, and testing would be consistent with recommendations by the CDC or other public health authorities.

The EEOC’s guidance permits employers to require COVID-19 viral screening when one of the above circumstances apply.  However, the guidance is emphatic that employers cannot require employees to submit an antibody test (as distinguished from a viral screening test) before reentering the workplace.

Screening Questions Are Still Permitted

Under the updated guidance, other types of less-intrusive screening for COVID-19 remains permissible.  Employers can ask employees who are physically entering the workplace if they have COVID-19 or associated symptoms, and whether they have been tested for COVID-19.  Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.

Those who respond that they are infected or exhibiting symptoms may still be excluded from the workplace, but employers cannot entirely prohibit them from working if remote work is feasible.  Similarly, employees who refuse to respond to the employer’s screening questions may be excluded from the workplace.

Screening and Evaluating Job Applicants

Employers may additionally screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided that screening is similarly administered to all employees in the same type of job who are entering the workplace.  At the pre-offer stage, screening of job applicants before they come in for an interview is only permissible if the employer screens all individuals, including visitors and contractors, before permitting entry to the worksite.

Given the relatively short period of time required for isolation or quarantine for those who test positive for COVID-19, the EEOC’s updated guidance limits the circumstances in which an employer can withdraw a job offer for an applicant who has tested positive for COVID-19.  The employer must be able to show that the job requires an immediate start date, the CDC guidance recommends the person not be in proximity to others, and the job requires that the individual be in proximity to others (it cannot be done remotely).

By Tracey I. Levy

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11

July, 2022

Maximize Your Talent Pool: 3 Ways to Ensure Your AI Is Not Screening Out Qualified Job Candidates with Disabilities

My son has been applying for hourly, entry-level summer jobs. Through his process, I am seeing first-hand, from the applicant’s perspective, the varying ways in which software, algorithms and artificial intelligence now predominate the job application process at this level.  When I was his age, I walked into different establishments, asked to speak with a manager, completed a paper application and then moved on, hoping to be called for a phone or in-person interview.  Now, from his experience:

  • Walk-in applicants are directed to a website, either that of the business itself or of a third-party vendor, to find postings for open positions;
  • All applications are submitted electronically, through on-line portals;
  • Initial screenings may be conducted by a series of questions texted to the applicant, and a wrong answer can shut the process down with a polite but firm response that the organization will not be proceeding further with the application at this time;
  • A next-level screening may be a video “interview,” which comprises the applicant self-recording, on the applicant’s phone with video enabled, responses to scripted questions posed by the organization and then submitting the video through a portal for review – perhaps by a human, but more likely first run through software that screens for certain substantive responses and stylistic behaviors; and
  • Scheduling of actual, in-person interviews may proceed through text or email, and the delayed responder may lose the interview opportunity, but the quick responder may, eventually, meet with an actual human being, in-person or via videoconference.

My son is very tech-savvy and was non-plussed by the AI aspects of his experience.  I, on the other hand, thought of the challenges my friends and I all have had, to varying degrees, trying to assist older family members use some of the same technologies deployed in my son’s job application process.  And I wondered, how would any of them be able to apply for an entry-level job under the current processes?  So too, the EEOC says, with regard to individuals with disabilities. 

In recently-issued Guidance, the EEOC considers these myriad ways in which automated processes and artificial intelligence can reject individuals with disabilities who would be qualified to do the job if provided a reasonable accommodation.  The EEOC recommends that employers account for this in various ways.  They include:

  • Notice – provide clear notice and instructions for applicants to request a reasonable accommodation in the context of the application process;
  • Relevance – assess algorithmic decision-making tools to confirm they measure only necessary skills and do not screen out individuals with certain disabilities; and
  • Disclosure of Process – disclose in advance information about which traits are being measured by an algorithmic tool, how they are being measured, and which disabilities might potentially score less favorably.

Artificial intelligence, we need to remember, is only as good as the information that was first used to program it.  The biases of the program designers and developers can influence the types of questions posed, or the way information is presented or analyzed, and thereby result in outcomes that disproportionately impact individuals possessing certain protected characteristics.  While some software vendors test for these disparate impact outcomes and will certify their products as having been tested to be “bias-free,” the EEOC cautions that those “bias-free” certifications pertain to Title VII-protected characteristics: race, sex, national origin, religion, and color.  Disabilities are unique to each individual, as is the requirement to provide reasonable accommodations for individuals with disabilities who are otherwise able to perform the essential functions of a job, and automated tools may thereby impact differently-abled individuals, even if they have the same diagnosed condition.

The EEOC encourages employers to develop and select tools that only measure abilities or qualifications that are truly necessary for the job.  While particularly resonant in the context of accommodating individuals with disabilities, the EEOC’s recommended approach will equally help employers to avoid inadvertently screening out individuals based on other protected characteristics.

Central to the EEOC’s guidance is encouraging employers to equip individuals with disabilities with sufficient information about the employer’s job application process so they know when they may need a reasonable accommodation to succeed in that process.  Particularly in the currently tight labor market, where employers are casting ever-wider nets to attract job applicants, a reassessment of screening tools can help to ensure that readily-available candidates are not rejected prematurely for reasons unrelated to their actual ability to perform the job.

By Tracey I. Levy

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