Mid-Atlantic Health Law TOPICS

The COVID-19 rules for health care workers and non-health care workers are markedly different.

Health Care Workers

A spokesperson for the Centers for Medicare and Medicaid Services (CMS) stated that the COVID-19 vaccine mandate for health care workers at facilities paid by Medicare and Medicaid will likely remain in effect even after the public health emergency ends.

Furthermore, the U.S. Supreme Court said, when reviewing the legality of the mandate, that CMS likely has the authority to regulate the conditions health care facilities must meet to get funding, even without considering the pandemic.

Non-Health Care Workers

On the other hand, in July of 2022, The U.S. Equal Employment Opportunity Commission (EEOC) released new guidance for employers, including the following:

1. The EEOC amended its prior COVID-19 testing guidance for employers regarding mandatory screening tests clarifying that “evolving pandemic circumstances will require an individualized assessment by employers to determine whether [COVID-19 testing] is warranted consistent with the requirements of the ADA.” Any mandatory screening measures must now meet the “job-related and consistent with business necessity” standards under the Americans with Disabilities Act (ADA). Prior guidance had permitted employers to administer viral tests for employees in the workplace and was deemed automatically to comply with the ADA without a need for an individualized assessment.
    
2. The EEOC also provided new guidance permitting employers to screen applicants for symptoms of COVID-19 after making a conditional job offer if the employer screens all entering employees in the same type of job. However, the EEOC clarified that job offers may only be rescinded after a positive test if (a) the job requires an immediate start date, (b) the current CDC guidance recommends the person not be in proximity to others, and (c) the job requires such proximity to others.

This new EEOC guidance comes shortly after the EEOC settled a lawsuit with a Florida medical practice that was collecting employees’ family members’ COVID testing results. With some narrow exceptions, the federal Genetic Information Non-Discrimination Act (GINA) prohibits employers from requesting medical information about an employee’s family members or an employee’s family medical history. Employers may still ask employees whether they have been in contact with anyone diagnosed with COVID if the question is not specific to the employee’s family members.

Darci M. Smith
410-576-4153 • dsmith@gfrlaw.com