EEOC Takes on Antibody Testing, Returning Older and Pregnant Workers Post-COVID-19

By Tracey Truesdale and Caroline Kane - Franczek P.C.

June 18, 2020

The EEOC recently updated its COVID-19-related Q & A’s to assist employers in navigating “the new world” post-COVID-19 while complying with the federal anti-discrimination laws as employees return to work.  The updated topics, summarized below, include guidance on antibody testing, ADA accommodation and treatment of pregnant and older workers.

1. Employers cannot require antibody testing before permitting employees to re-enter the workplace. The EEOC has taken the position that antibody tests, which test whether an individual was ever infected with COVID-19, constitute a “medical exam” under the Americans with Disabilities Act (“ADA”), and at this time, these tests do not meet the ADA’s “job related and consistent with business necessity” standard. Notably, the EEOC distinguishes an antibody test from a test to determine if someone has an active case of COVID-19, such as a viral test, which remains permissible under the ADA.  This guidance is consistent with the Center for Disease Control’s (“CDC”) recent position in its Interim Guidelines stating that antibody test results “should not be used to make decisions about returning individuals to the workplace,” although the EEOC’s current position may change should the CDC’s recommendations change.

2. Employers may communicate return-to-work processes for workers requiring accommodation. With employees returning to the workplace, employers can anticipate a high volume of accommodation requests from employees who would prefer to remain at home. The ADA and the Rehabilitation Act permit employers to provide employees with the contact person fielding accommodation requests and information related to the CDC-listed medical conditions that may place people at a higher risk of serious illness if they contract COVID-19.  Employers may also notify employees that all requests will be considered on a case-by-case basis. As requests are received, employers should begin the interactive process.

3. Alternative methods of wellness screening are a form of reasonable accommodation. A request by an employee to either be relieved of or given an alternative method of daily wellness screening should be handled in the same manner as any other request for accommodation under the ADA or the Rehabilitation Act.  An employer may ask the employee for information to establish that the condition is a disability (if it is not obvious) and what specific limitations require accommodation. If necessary, an employer may require medical documentation and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship. Similarly, if an employee is seeking an alternative method of wellness screening as a religious accommodation, the employer should determine if accommodation is possible.

4. Accommodations for non-disabled employees are not required. Some employees are understandably reluctant to return to the workplace because a member of their family is high risk for COVID-19.  The duty to accommodate extends only to an employee with an actual mental or physical impairment; it does not extend to having a family member with such a condition.  Accordingly, the ADA does not require that an employer accommodate a non-disabled employee based on the disability-related needs of a family member or associate who may be at a higher risk of severe illness from COVID-19 due to an underlying medical condition. So, if an employee without a disability requests an accommodation (such as teleworking) in order to protect a high-risk family member from COVID-19 exposure, the ADA does not require the employer to grant this accommodation.

5. Employers cannot exclude older or pregnant workers from the workplace because they are at higher risk. Even if well-intentioned, excluding workers who may be at higher risk of severe illness due to COVID-19 may draw a violation under EEO laws. The Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating against individuals age 40 and older by involuntarily excluding those workers from the workplace based on their age. Similarly, under Title VII, employers may not exclude workers on the basis of pregnancy. As far as accommodations for these workers, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, the EEOC guidance states that employers are free to provide flexibility to workers age 65 and older, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. As far as accommodations for pregnant employees, employers must be mindful of the ADA and Title VII (and in Illinois, the Illinois Human Rights Act). Pregnancy-related medical conditions can qualify as disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it. Under Title VII and the IHRA, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other similarly situated employees.

6. Sex discrimination as related to caregivers/family responsibilities. If employers provide telework, modified schedules, or other benefits to employees with school-age children due to school closures during the pandemic, employers should be wary of sex discrimination considerations. The concern here is employers giving female employees more favorable treatment than male employees because of gender-based assumptions about caretaking responsibilities. Employers may provide work flexibilities as long as they are not treating employees differently based on sex or any other EEO-protected characteristic.

7. Employers should be vigilant about pandemic-related harassment. Employers may see an increase in discriminatory conduct aimed at employees who are or are perceived to be of Chinese or Asian descent. Employers should ensure that management understands how to recognize such harassment and swiftly resolve potential problems. Because this behavior can occur in the remote workplace, over email or telephone calls, and on social media, employers should consider sending a reminder to managers and their employees regarding Title VII’s prohibition on harassment (even in the remote workplace) and provide all employees with the information they need to report such conduct.