Antibody Tests Cannot be Required From Employees to Return to Work; Other New COVID-19 Guidance Issued

Update: On July 20, 2020, the Centers for Disease Control and Prevention updated its guidance for Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings. In relevant part, a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances—testing could be considered for persons who are severely immunocompromised, in consultation with infectious disease experts. Thus, employers should implement a symptom-based strategy for return to work.

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The Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance for employers. The new guidance explains that antibody tests cannot be required from employees to re-enter the workplace, addresses when an employee may receive an alternative symptom screening check as a disability or religious accommodation, reminds employers that actions taken based on their benevolent concerns about older workers, pregnant workers, and child caregivers may be discriminatory, and reiterates the employer’s obligation to prevent harassment against employees who are or are perceived to be of Chinese or other Asian national origin.

The Centers for Disease Control and Prevention (CDC) has also released guidance on contact tracing for government contract tracers. The guidance includes material that private employers might find helpful in contact tracing within their workforce.

                                                                      EEOC Guidance

Antibody Tests Cannot Be Required From Employees to Return to Work 
The CDC has recognized that antibody test results “should not be used to make decisions about returning persons to the workplace.” This is because antibodies “most commonly become detectable 1-3 weeks after symptom onset, at which time evidence suggests that infectiousness likely is greatly decreased and that some degree of immunity from future infection has developed.” Since the reliability of antibody testing to confirm COVID-19 is questionable, antibody testing at this time does not meet the Americans with Disabilities Act’s (ADA) “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

Alternative Symptom Screening Check as a Disability or Religious Accommodation
If an employee entering the worksite requests an alternative method of symptom screening due to a medical condition, an employer should proceed as it would with any other request for accommodation under the ADA or the Rehabilitation Act.  If the requested change is easy to provide an inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require accommodation. If necessary, an employer also may request medical documentation to support the employee’s request and then determine if that accommodation, or an alternative effective accommodation, can be provided absent an undue hardship.

Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

Employers May Provide Older Workers Flexibility in Work Arrangements
The CDC has recognized that people 65 years and older have a higher risk of severe illness if they contract COVID-19. Still, the EEOC has maintained that employers may not exclude an individual from the workplace involuntarily based on his or her being 65 or older, even if the employer’s actions are for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Under the Age Discrimination and Employment Act (ADEA), older, healthy employees do not have the inherent right to reasonable accommodations on the basis of their age alone. But, the EEOC FAQ has now clarified that the ADEA allows employers to provide flexibility to workers age 65 and older, even if it results in younger workers ages 40 to 64 being treated less favorably based on age in comparison.

Employers Should Treat Pregnant Workers Like All Other Workers
The CDC has stated that pregnant people appear to have the same risk of COVID-19 as adults who are not pregnant; however, generally, pregnant people have had a higher risk of severe illness when infected with viruses that are similar to COVID-19. Regardless, the EEOC has maintained that employers may not exclude an individual from the workplace involuntarily based on pregnancy, even if the employer’s actions are for benevolent reasons.

Although pregnancy itself is not an ADA disability, an employee may request a reasonable accommodation due to pregnancy-related medical conditions. The employer must then consider the requested accommodations under the usual ADA rules. Moreover, Title VII, as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that 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 employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Employers May Provide Caregivers Flexibility in Work Arrangements
Employers may provide telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic as long as they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Identify and Stop Pandemic-Related Harassment
Managers should 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. Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems before they rise to the level of unlawful discrimination.

Employers may also choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.  Employers may remind employees that harassment can result in disciplinary action up to and including termination.

                                                                       CDC Guidance

CDC’s Contact Tracing Guidance
The CDC guidance on contact tracing explains steps that a government contact tracer should take when investigating an outbreak. The information in the guidance is helpful in informing employers how government contact tracing is conducted and is relevant to how to conduct contact tracing in the workplace.

The guidance explains that contact tracing will be conducted for close contacts of an employees with laboratory-confirmed or probable COVID-19. A close contact is an individual who has been within six feet of an infected person for at least 15 minutes. Close contacts should be notified of their exposure as soon as possible (within 24 hours of contact if possible). Every effort should be made to interview the close contact by telephone, text, or video conference instead of in person; in-person communication may be considered only after remote options have been exhausted.

Testing is recommended for all close contacts of confirmed or probable COVID-19 individuals. If a close contact tests positive (symptomatic or asymptomatic), they should be managed as a confirmed COVID-19 case. If a close contact tests negative and is asymptomatic, they should self-quarantine for 14 days from their last exposure (i.e., close encounter with confirmed or probable COVID-19 case). If testing is not available, symptomatic close contacts should self-isolate and be managed as a probable COVID-19 case, and asymptomatic close contacts should self-quarantine and be monitored for 14 days after their last exposure with information to clinical care for those who develop symptoms.

Keeping on top of this growing body of guidance can mitigate a substantial amount of risk down the road. Contact Payne & Fears LLP if you have any questions.