EEOC: Employers Can't Require COVID-19 Antibody Tests
June 18, 2020
The Equal Employment Opportunity Commission (EEOC) released new guidance for employers during the COVID-19 pandemic that follow current Centers for Disease Control (CDC) guidelines.
In its guidance, the EEOC stated employers are not allowed to require employees to take antibody tests for COVID-19 before allowing them to return to work. While employers are allowed to require viral tests, which test for active infections, an antibody test is not considered job-related and is prohibited under the Americans with Disabilities Act (ADA).
Additionally, the EEOC announced that accommodations for many employees must follow ADA guidelines. For example, under ADA guidelines, employees who have family members that are considered to be at high risk for severe illness if they contract COVID-19 may not receive special accommodations. If accommodations are necessary for some employees, they must be requested under existing ADA rules.
Here’s a look at additional guidance issued by the EEOC:
Employees with High-Risk Family Members or Acting as Caregivers
Additionally, the EEOC has recently said that employees are not entitled to accommodations under the ADA in order to avoid exposing family members who may be at high risk of severe illness if they contract COVID-19. The ADA only provides accommodations if the employee is the one with a disability that puts them at high risk, not their family members. However, employers are still able to be flexible and provide their employees these accommodations as long as they avoid disparate treatment of other employees. If an employee is acting as a caregiver during this time, such as for school-age children, employers may offer flexibility for them in working remotely but should be careful to avoid Title VII violations, such as using gender-based assumptions of women serving as the primary caregivers for children.
Harassment of Asian Employees
The EEOC has also been made aware of harassment of Asian employees due to COVID-19. They have advised that employers be alert to any remarks that may be derogatory and aimed at employees of Asian heritage and suggested that employers remind management of Title VII rules against harassment, as well as processes for reporting incidents that may occur.
Requesting Accommodations
For employers anticipating a return to the workplace, the EEOC has stated that employers may inform all employees of the process they should use if they want to request accommodations. If appropriate, such accommodation requests should be handled in the same way as any other accommodation under the ADA or the Rehabilitation Act. Such requests may require medical documentation if the employer has been previously unaware of the employee’s disability.
Employees Over Age 65
If an employer has employees over the age of 65, the EEOC has advised that employers may not prohibit those employees from returning to work, even if the goal is to protect them from COVID-19. The Age Discrimination in Employment Act (ADEA) prohibits any employment discrimination based on age, and still applies during this pandemic. The ADEA has no exception for reasonable accommodations due to age. This means employers may only offer flexibility to employees over 65, not any requirements based solely on their age.
Pregnancy
The EEOC stated that excluding an employee from the workplace involuntarily due to pregnancy would be a violation of Title VII because it is considered discrimination based on sex. However, if you do have pregnant employees, they may be able to be accommodated under the ADA or Title VII if the accommodations follow the usual rules under the law.
Contact ALTA at 202-296-3671 or communications@alta.org.