Updated EEOC COVID-19 Guidance

July 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.

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July 14, 2025
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Remote Workers and the WARN Act

July 9, 2025
Background: The e-commerce website Zulily liquidated in May 2023 and laid off its entire workforce by the end of 2023. While in-person workers at Zulily’s Seattle headquarters and fulfillment centers in Ohio and Nevada received 60 days’ notice or pay under the Worker Adjustment and Retraining Notification (WARN) Act, remote employees were not given any notice or pay. Four remote workers—two based in Washington and two based in Ohio—filed a class action lawsuit claiming that this was a violation of the WARN Act and state wage laws. The workers argued that because their roles were assigned to corporate offices or fulfillment centers, they should have been considered “affected employees” under the WARN Act when those sites closed. In a decision that could signal a significant shift in how the WARN Act applies to remote workers, the federal judge refused to dismiss the workers’ claims.  Key Legal Questions 1. Do Remote Workers Qualify for WARN Act Protections? The core of the dispute centers on whether remote workers can be considered part of a “single site of employment” that closed or experienced a mass layoff—terms that define whether the WARN Act’s notice requirements kick in. 2. Are WARN Act Damages Considered “Wages”? The Plaintiffs also brought state wage claims, arguing that the pay they would have received with proper WARN Act notice should be considered unpaid “wages” under Washington law and Ohio law. What the Court Decided: Judge Kymberly K. Evanson rejected the company’s motion to dismiss the case. Finding that Zulily’s argument that remote employees do not work at a single site with 50 or more workers and thus aren’t covered, was a factual question not suitable for early dismissal. Prior cases support the idea that even home-based employees may be “affected employees” if tied to a central worksite that shuts down. The court also found that if the WARN Act applies, then the Plaintiffs could plausibly claim that Zulily withheld “wages” owed under Washington and Ohio laws —opening the door to potential double damages and attorney fees. The Plaintiffs haven’t won their case; the court’s refusal to dismiss the claims allows them to move forward to discovery and potentially class certification. If they succeed, the case could set a precedent requiring companies to treat remote employees as part of larger employment sites for WARN Act purposes. With remote work here to stay, courts—and employers—will need to grapple with what "site of employment" really means in the 21st-century workforce. For employers, the message is clear: remote doesn't mean exempt. As the legal framework catches up with modern work arrangements, companies must tread carefully when making large-scale employment decisions. 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.