This article has been updated from its original version to clarify the new guidance from EEOC.
The Equal Employment Opportunity Commission (EEOC) has updated a previous pronouncement it issued earlier in the Coronavirus pandemic. The EEOC, relying on guidance from the CDC, stated on June 17 that employers cannot require COVID-19 antibody testing before permitting employees to re-enter the workplace. But, the EEOC reiterated that employers are still permitted to administer COVID-19 viral tests before allowing employees to return to the workplace.
The Americans with Disabilities Act (ADA) regulates the ability of employers to require employees to undergo medical examinations. In April, the Commission explained that under the ADA employers could administer COVID-19 viral testing – tests to detect the presence of the virus -- because an employee with the virus would pose a direct threat to the health of others. Anyone with the virus is capable of transmitting it to others; the EEOC stated that employees who tested positive for the coronavirus could be barred from the workplace.
On June 17, the EEOC explained that the ADA dictated a different result for COVID-19 antibody testing. These tests are used to detect who had the virus in the past. Recent CDC guidance stated that the results of COVID-19 antibody tests “should not be used to make decisions about returning persons to the workplace.” Based on this CDC pronouncement, the EEOC concluded that the ADA would not permit employers to use antibody testing to determine who may re-enter the workplace. The EEOC emphasized that “an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test)” and again noted its previous statement in April “that COVID-19 viral tests are permissible under the ADA.” The EEOC noted that it could update its discussion about employers’ use of COVID-19 antibody tests if the CDC were to change its recommendations.
Although some employers had hoped that antibody testing might help identify employees who were potentially immune to COVID-19, the CDC has stated that the meaning of an antibody test is not well defined and understood at this time, note attorneys George Ingham and Zachary Siegel of the law firm of Hogan Lovells.
While requiring antibody testing before reentry to the workplace is not allowed under the ADA, keep in mind that an antibody test is different from a test to determine if someone has an active case of COVID-19, which is called a viral test. The EEOC has already stated that COVID-19 viral tests are permissible under the ADA and continues to maintain that position.
Other actions EEOC’s latest guidance says employers may take include new as well as returning employees:
● Job applicants may be screened for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job. (This ADA rule applies whether or not the applicant has a disability.)
● Any medical exams are permitted after an employer has made a conditional offer of employment, including taking their temperature. EEOC says employers should be aware that some people with COVID-19 do not have a fever.
● An employer may delay the start date of any applicant who exhibits symptoms because current CDC guidance holds that an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
● Similarly, under law an employer may withdraw a job offer if the applicant is needed immediately but exhibits symptoms.
The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. As an alternative, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
Need for Accommodations
The agency’s newest guidance also makes clear that an employee who requests an alternative means of screening due to a health or medical condition, or for religious reasons, may be entitled to reasonable accommodation from the employer under the ADA, as well as Title VII of the Civil Rights Act of 1964.
As a result, attorney James A. Paretti, Jr. of the law firm of Littler Mendelson, recommends that employers view a request for a different means of testing as a request for such accommodation. It is then up to the employer to decide whether to provide such an accommodation, which it may or may not choose to provide, depending on how much of a burden on the employer an alternative method of screening represents.
Employers also must make sure that these tests are administered in a non-discriminatory way, and the test results be maintained as confidential employer medical records that are carefully segregated from an employee’s regular personnel file.
The updated guidance also reminds employers that under the Age Discrimination in Employment Act (ADEA) and Pregnancy Discrimination Act (PDA), an employer may not exclude older or pregnant workers from the workplace because of their age or pregnancy, despite the fact that these individuals may be at higher risk of serious illness from COVID-19.
This is true even if the employer is acting in what it thinks is the employee’s best interests, Paretti points out.
However, the EEOC makes it equally clear that employers are free to accommodate requests from older or pregnant workers for flexibility with respect to returning to the workplace, so long as it does so in a consistent and non-discriminatory manner. The takeaway is that an employer may not systematically exclude them, Paretti stresses. On the other hand, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date, the commission says.
EEOC also makes clear that an employer is not required to provide reasonable accommodation to an employee without a disability in situations where the employee who is without a disability chooses to request a reasonable accommodation to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition or disability.
In a sign of the times we live in, the commission also emphasized that employers should be aware that they have a legal duty to address possible ethnic harassment in the workplace that has arisen from the pandemic and people associated with the country of its origin.
“Managers should be alert to demeaning, derogatory or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the Coronavirus or its origins,” EEOC states. “Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.”
This policy also extends to employees who are engaging in telecommuting by working from home. “The employer should take the same actions it would take if the employee was in the workplace,” EEOC says. “Employees may not harass other employees through, for example, e-mails, calls, or platforms for video or chat communication and collaboration.”
The commission suggests that employers send a reminder to the entire workforce noting civil rights law prohibitions on harassment and inform employees that such behavior will not be tolerated. Such a notice also should invite anyone who experiences or witnesses workplace harassment to report it to management. “Employers may remind employees that harassment can result in disciplinary action up to and including termination,” EEOC says.