Can COVID-19 antibody testing be used to screen employees? Do employers have to provide accommodations to workers living with someone who is “high-risk”? Sue and our guest-host Sarah Wisor answer those questions and more to help employers get their employees back to work safely.
Sue: Welcome to our Podcast. I’m your host, Sue Woods, and I’m Senior Compliance Counsel for Reed Group, a Guardian company. Joining me on the podcast is Sarah Wisor, Senior Compliance Counsel at Reed Group.
Sue: These podcasts are designed to provide quick, easy to understand information about COVID-19 and how it’s affecting employers. On June 11th the EEOC issued some additional guidance related to COVID-19 on its Q&A website. The guidance is very timely as it provides clarity to many questions employers have as their employees return to the workplace. On today’s podcast we’ll discuss some of those questions.
Sue: Hi Sarah: So, there are more changes from the EEOC, what a surprise?
Sarah: The EEOC is full of surprises lately, but I do think they are trying to provide as much clarity and guidance as possible so employers can make the best decisions as their employees return to work.
Sue: So, it’s a good surprise ten? Speaking of clarity, employers were looking for more clarity regarding employees who live with a family member who has a high risk of severe illness from COVID-19. How should employer’s deal with these workers, do they have to provide an accommodation?
Sarah: We’ve received this question from many clients. Per the EEOC guidelines, an employer does not have to provide an employee with an accommodation in these circumstances. Even if the employee’s family member is at higher risk for COVID-19, that employee is not entitled to an accommodation under the ADA. Though the ADA does prohibit discrimination based on an association with someone with a disability, it’s not applicable in this case. Therefore, if an employee in this situation made a request to continue to telework as an accommodation; that request could be lawfully denied. Of course, employers can grant such a request without considering it as an ADA accommodation and flexibility in these types of cases is encouraged.
Sue: What does the EEOC say about flexible work arrangements? If you aren’t sick but still want an accommodation?
Sarah: The new EEOC guidance suggests that employers should proactively make information available for employees who request accommodation before returning to the workplace. The employer can take several steps to accomplish this:
- If requests are received in advance, the employer should begin the interactive process right away;
- An employer may issue a notice including the CDC list of medical conditions that make an employee more susceptible to serious illness if they contract COVID-19 and provide instructions about who to contact in the organization;
- Explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions;
- Send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis.
The guidance also emphasizes the importance of employers providing accommodations and being more flexible regarding employees who are more susceptible to COVID-19.
Sue: Interesting. What about testing? We know that employers can do some testing, What if an employee requests an alternative method of screening due to a medical condition?
Sarah: Per the guidelines, this situation should be treated as a request for a reasonable accommodation and the employer should engage in the interactive process to determine the appropriate action to address the employee’s needs. If the request is inexpensive and doesn’t pose an undue hardship, the employer should consider voluntarily making it available to their employees without going through an extensive interactive process. In addition, if the disability is not obvious an employer may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided. Similarly, if an employee requested an alternative method of screening because of religious concerns, the employer should determine if a religious accommodation is available under Title VII.
Sue: What about o older workers? We’ve learned during a previous podcast that simply being over 65 doesn’t entitle you to an accommodation. Has that changed?
Sarah: The Age Discrimination in Employment Act prohibits employment discrimination against individuals age 40 and older however it does not require a reasonable accommodation for these individuals. The guidance does recommend employers be flexible when it comes to workers over the age of 65 who may have concerns over susceptibility to COVID-19.
Sue: Since the CDC has identified pregnancy as potentially being more susceptible to COVID-19, can an employer exclude a pregnant employee from the workplace?
Sarah: Even if the employer has a legitimate concern about the pregnant employee’s safety it cannot single that employee out and involuntarily remove them from the workplace. However, if a pregnant employee requests an accommodation because of a pregnancy-related medical condition, the employer should engage in the interactive process to determine the appropriate accommodation. In addition, Title VII as amended by the Pregnancy Discrimination Act provides that women affected by pregnancy, childbirth, and related medical conditions may be entitled to job modifications, including telework, changes to work schedules or assignments and leave to the extent provided to other employees similarly situated in their ability or inability to work.
Sue: Sarah, a lot of workers would like to continue to telework because of childcare considerations. Are there any legal concerns if an employer offers telework to only some of its employees and not others?
Sarah: It can be discriminatory if the employer is treating employees differently based on sex or other protected characteristics. For example, female employees cannot be given more favorable treatment than male employees because of stereotypical assumptions about who typically is the caregiver for children.
Sue: Any new developments on testing. I’ve heard of lot of people relying on anti-body testing. Can an employer rely on these types of case?
Sarah: The CDC, in its Interim Guidelines has stated that antibody test results “should not be used to make decisions about whether an employee can return to the workplace.” In light of this position, an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to return to work would not be allowed under the ADA. However, an antibody test is different from a test to determine if an employee has an active case of COVID-19 which the EEOC has stated is permissible under the ADA. As always, use good judgment and fairness when initiating medical examinations in the workplace.
Sue: Great information Sarah. As always, employers should continue to monitor the latest developments related to COVID-19 on both the Guardian and ReedGroup websites, as well as information provided by the CDC, DOL, and other applicable resources.
Thank you for tuning in and we hope you’ll join us for our next podcast.
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Information provided on this podcast is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.