The Equal Employment Opportunity Commission (EEOC) has updated its March 18, 2020 guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to provide additional guidance to employers on how various federal discrimination laws interact with issues that arise as part of the COVID-19 pandemic. Among other things, the EEOC provided additional questions and answers regarding antibody testing, obligations to at-risk workers, such as older workers and pregnant women, as well as pandemic-related harassment directed toward Asian employees, and further clarified situations in which the Americans with Disabilities Act (ADA) may require reasonable accommodations.

Antibody Testing

The EEOC’s latest guidance advises that employers cannot require employees to take an antibody test before allowing an employee to return to work. Unlike viral tests, which test for active infections, antibody tests are not currently considered to be job-related and consistent with business necessity. As such, they are prohibited medical tests under the ADA.

Accommodation for Employees with At-Risk Family Members

Protection under the ADA does not extend to accommodations for an employee without a disability based on the disability-related needs of a family member. For example, an employee without a disability is not entitled to telework as an accommodation under the ADA to protect a disabled family member from potential COVID-19 exposure. Employers are free to provide such flexibility but should be aware of engaging in disparate treatment.

Pandemic-Related Harassment of Asian Employees

Managers should be alert to harassing remarks, including those related to COVID-19, directed at employees who are or perceived to be of Chinese or other Asian national origin, and be aware of non-employee sources such as customers, patients, contractors, etc. Employers should consider reminding all employees of Title VII prohibitions on harassment and have a process for reporting incidents. Harassment can occur when employees are working remotely, and employers should take the same actions as if the employees were in the workplace.

Returning to Work

Under the ADA and the Rehabilitation Act, employers may inform all employees of the process to request accommodations that may be necessary upon return to the workplace. Whoever receives the inquiries should be prepared to address them consistently with the different federal employment discrimination laws.

If an employee makes a request to be exempt from a face covering requirement due to a disability, an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the disability is not obvious or already known, an employer can ask for additional information, including medical documentation. If the request is based on a religious accommodation, the employer should determine if accommodation is available under Title VII.

Employees 65 and Older

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 and therefore has encouraged employers to offer maximum flexibilities to this group. But in its latest guidance, the EEOC cautioned employers that the Age Discrimination in Employment Act (ADEA) still applies during this pandemic. The ADEA prohibits employment discrimination against individuals age 40 and older; thus an employer cannot involuntarily exclude an employee from the workplace because he or she is 65 or older, even if the reasons are benevolent. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age, but employers can provide such flexibility even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. Employers should be aware of medical conditions that may bring older workers under ADA protection.

Caregivers

If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, employers should make sure they are not treating employees differently based on sex or other EEO-protected characteristics. For example, employers should not deny a male employee’s request to telework to care for his children simply because he is male.

Protections for Pregnant Employees

The EEOC warned employers not to exclude employees from the workplace simply because a worker is pregnant. Sex discrimination under Title VII includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer cannot single out pregnant workers for adverse employment actions, including involuntary leave, layoff, or furlough.

Pregnant employees may, however, have the right to be reasonably accommodated under the ADA or Title VII. If a pregnant employee makes a request for reasonable accommodation, the employer must consider it under the usual ADA rules. Under Title VII, pregnant women must be treated the same as others similar in their ability or inability to work, thereby entitling them to job modifications such as telework, that are available to other employees.

In each of these scenarios, employers should be up-to-date on their obligations under workplace discrimination laws. Management and human resources should be prepared to respond to requests for accommodation and flexibility in accordance with their obligations while avoiding disparate treatment of protected groups. Employers must also be aware of potential sources of harassment and have a process for reporting and discipline.