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06/17/2020 | News release | Archived content

EEOC Provides Return-to-Work and COVID-19 Antibody Testing Guidance Under Federal Civil Rights Laws

The EEOC has been updating this guidance on a rolling basis since March. Key takeaways from its most recent updates address:

Medical Screening

While the EEOC has previously expressed its view that temperature checks and screening for the COVID-19 virus are permissible under the Americans with Disabilities Act (ADA), employers must ensure that such tests are administered in a non-discriminatory way, and the results of such tests be maintained as confidential employer medical records segregated from an employee's regular personnel file. Most recently, on June 17, 2020, the Agency made clear its view that tests for the presence of the coronavirus itself are permissible under the ADA, as the presence of the virus can indicate that the employee is a direct threat to others in the workplace. At the same time, the updated guidance expresses the EEOC's view that tests for the presence of coronavirus antibodies are not permissible under the ADA as a screening tool to determine whether employees are allowed to return to work. The EEOC noted that its position is in line with the Centers for Disease Control's (CDC) position, but that its position may change in the future if the CDC's position does. Finally, the guidance makes clear that under the ADA, as well as Title VII of the Civil Rights Act of 1964 (Title VII), 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, and employers should view a request for a different means of testing as a request for such accommodation (which may or may not be provided, depending on the burden on the employer in providing an alternative method of screening).

Pregnant and Older Workers

The EEOC's updated guidance 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. The EEOC makes equally clear, however, 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, however, is that an employer may not systematically exclude them.

ADA/Employees with Higher-Risk Family Members

The EEOC's updated guidance also makes clear that an employer is not required to provide reasonable accommodation to an employee without a disability, even where, for example, the employee without a disability requests 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. Again, however, the Agency notes that employers are free to provide workplace flexibility beyond what the law requires (e.g., choosing to allow an employee to continue to telework to avoid exposing a vulnerable family member), but cautions that an employer that does so should be careful to not do so on a discriminatory basis.

Harassment

Finally, the EEOC took the opportunity to remind employers of their responsibility to maintain a workplace free of harassment on all bases, including national origin and race, in light of the COVID-19 pandemic. With news reports of potential discrimination and harassment of employees who may be of Asian descent, the Agency's reminder is a timely one. The EEOC also notes that employers may wish to take the opportunity to remind employees returning to work of the employers' commitment to a discrimination and harassment-free workplace, and directs employers to its Select Task Force on Harassment in the Workplace report, which provides guidance on harassment training, compliance, reporting, and investigations, and includes a number of helpful check lists and charts of harassment risk factors employers may wish to review.