Earlier this year in April, the Equal Employment Opportunity Commission (EEOC) made it clear that employers could lawfully test their employees for COVID-19 before entering the workplace to determine if they have COVID-19. Viral testing fit the Americans with Disabilities Act (ADA) requirement that any mandatory medical tests of employees be “job related and consistent with business necessity.”What the EEOC didn’t provide guidance on was whether employers could use COVID-19 antibody testing on their employees. Recently released guidance sheds light on this issue. The EEOC guidance (released on June 17, 2020) explains that employers may not require employees to undergo antibody testing before entering the workplace.
The Centers for Disease Control and Prevention (CDC) stated that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this, COVID-19 antibody testing does not meet the ADA’s “job related and consistent with business necessity” standard for mandatory medical tests of employees and therefore is not permissible under the ADA.
Antibody tests and viral tests are not the same. Antibody tests check the blood for antibodies, which indicate whether someone had a past infection with the virus that causes COVID-19. The risk with antibody testing is that it may not find antibodies in someone with a current COVID-19 infection. A viral test, on the other hand, tells an individual whether s/he is currently infected with SARS-coV-2, the virus that causes COVID-19. This is done by checking samples from an individual’s respiratory system (such as swabs of the inside of the nose).
Based on the latest guidance, employers may administer COVID-19 viral tests before permitting employees to enter the workplace, but may not require COVID-19 antibody testing. This may change as the CDC releases new recommendations so stay tuned.
The CDC has identified people aged 65 years and older to be at high-risk for severe illness from COVID-19. This has raised concerns for employers as their employees return to work. Some would like to provide extra precautions for their employees who are 65 and older, however doing so may invite legal trouble.
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against workers aged 40 and older. An employer cannot bar an individual from the workplace simply because s/he is 65 or older — this would violate the ADEA. EEOC guidance says that employers cannot “involuntarily exclude” a worker aged 65 or older from the workplace, even if the employer acted for benevolent reasons. This means that an employer cannot force an employee aged 65 or older to work from home, while others work from the workplace, even if the employer is acting in the best interest of its employees aged 65-plus and minimizing their risk of contracting COVID-19.
Employers, however, are free to provide voluntary flexibility to workers aged 65 and older. In fact, the CDC has encouraged employers to offer maximum flexibilities to this group. The ADEA does not prohibit this increased flexibility to employees ages 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. Before employers implement any such changes that would result in employees aged 65 and older being treated more favorably than their younger counterparts, it is best to consult with qualified legal counsel to ensure compliance with nuanced state and local laws.
Lastly the EEOC guidance points out that the ADEA does not include a right to reasonable accommodations due to age. Older workers may qualify for reasonable accommodations under other laws though. For example, an older employee may have a medical condition that brings them under the protection of the Americans with Disabilities Act (ADA) as an individual with a disability. If this is the case, employers should conduct their interactive process and examine whether the employer must furnish the requested accommodations.
SHLC will be discussing this new guidance during our California and Nevada midyear update webinars next month. You can register for the webinar at https://suttonhague.com/events-2/.
To listen to a recent podcast interview SHLC conducted with William Tamayo (San Francisco District Director of the EEOC), visit https://calnevalaw.com/podcasts/.
Additionally, you can find information on other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://suttonhague.com/coronavirus/.
For a schedule of our upcoming webinars, visit https://suttonhague.com/events-2/. We also have downloadable webinars available at our Calnevalaw.com website.
To be the first to hear about new SHLC podcasts as they are released, be sure to subscribe at https://podcasts.apple.com/us/podcast/calneva-law-podcast/id1506833154.
Resources:
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html
https://www.cdc.gov/coronavirus/2019-ncov/testing/serology-overview.html
https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html
