With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  1. Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  2. Employees are not entitled to an accommodation under the ADA in order to reduce the risk of exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.
  3. If an employer implements health/temperature screenings upon entry, an employee’s request for an alternative method of screening due to a medical condition should be treated as a request for a reasonable accommodation.
  4. The ADEA prohibits employers from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acts for benevolent reasons, such as a desire to protect the employee.

In addition, the new guidance also includes a variety of “reminders” for employers to consider providing to employees as they return to work.  A summary of these reminders is available here.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html