Julie A. Aquino, Esq. | June 2020
On June 11, 2020 and June 17, 2020, the EEOC updated its Question and Answer document on COVID-19 and equal employment opportunity laws. The EEOC confirmed that employers are not required to provide accommodations for disabilities of family members of employees. The EEOC also announced that although employers may test employees to determine if they have an active case of COVID-19, employers may not require COVID-19 antibody testing.
The EEOC’s updated guidance addresses the following important topics:
- Accommodations for Family Members Not Required
The Americans with Disabilities Act (“ADA”) does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other associated person. Although the ADA recognizes claims based on an employee’s association with a disabled individual, Title I of the ADA does not require employers to make accommodations for an associated person, such as a family member. For example, an employee without a disability is not entitled to work remotely solely in order to protect a family member with a medical condition.
- Employee Screening
Because of the recognized community spread of COVID-19, the EEOC announced in March 2020 that employers are permitted to take body temperatures of employees, with the caveat that the screening results must be maintained confidentially. Employees are also permitted to conduct testing to determine if an employee or applicant has an active case of COVID-19 (referred to as a “viral test”). However, the EEOC clarified on June 17, 2020 that COVID-19 antibody testing is not permitted because it does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations of current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not permitted under the ADA. The EEOC noted that it may change its position in the future based on the CDC’s position. The EEOC also stated that employers should consider accommodation requests by employees for alternate methods of screening on a case-by-case basis.
- Age, Pregnancy and Gender Discrimination
The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus. However, the Age Discrimination in Employment Act (“ADEA”) prohibits a covered employer from involuntarily excluding an individual from the workplace based on his or her being age 65 or older, even if for benevolent reasons such as protecting the employee from illness. Unlike the ADA, however, the ADEA does not provide older employees with a right to reasonable accommodation due to age.
Pregnant employees also must not be excluded from the workplace due to pregnancy, even if motivated by benevolent concern. Title VII and the ADA may trigger accommodations for pregnant employees, however. With respect to caregiving and school closures, employers that provide flexibility to employees must not treat employees differently based on sex or other EEO protected characteristics. For example, female employees cannot be given more favorable treatment than male employees because of gender-based assumptions about caretaking responsibilities.
The EEOC also cautioned employers to 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 COVID-19 or its origins. Employers may choose to send a reminder to the entire workforce that harassment will not be tolerated and inviting anyone who experiences or witnesses workplace harassment to report it to management, and that harassment can result in disciplinary action up to and including termination.