Over the past several months, employers have been managing their businesses during a global pandemic while always keeping an eye on compliance with employment laws. We previously published a blog about the U.S. Equal Employment Opportunity Commission (“EEOC”) guidance for employers relating to COVID-19 and the Americans with Disabilities Act (“ADA”). That blog can be found at here.
On June 11, 2020 and June 17, 2020, the EEOC updated its previous guidance to employers relating to COVID-19 and the ADA. The updated guidance can be found here.
The following are some key updates from the EEOC guidance:
Under the ADA, employers may not require antibody testing before permitting employees to re-enter the workplace. An antibody test constitutes a medical examination under the ADA. The EEOC has followed the Centers for Disease Control and Prevention Interim Guidelines that states, “antibody test results should not be used to make decisions about returning persons to the workplace.” The antibody test, at this time, does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Please note, an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e. a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
An employee is not entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated. For example, an employee without a disability is not entitled, under the ADA, to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.
The Age Discrimination in Employment Act (“ADEA”) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being age 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.
An employer may not exclude an employee from the workplace involuntarily due to a pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions including involuntary leave, layoff, or furlough. However, pregnant employees may be entitled to certain job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. The guidance reminds employers to consider such requests under the usual ADA rules.
Employers may provide flexibilities as long as they are not treating employees differently based on sex, or other Equal Employment Opportunity protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
The attorneys at Reno & Zahm LLP continue to monitor COVID-19 related statutes, rules, regulations and guidance, and we will endeavor to provide regular updates when warranted. Please contact us with any questions. We are here to help you make it through these challenging times.