Employee safety should be an employer’s paramount concern in planning for a general return to work and the reopening of operations. The Equal Employment Opportunity Commission (EEOC) issued revised guidelines on June 17, 2020, which rejected the use of testing of employees for COVID-19 antibodies as a condition for the employee’s return to work. The EEOC now has adopted interim guidelines promulgated by the Centers for Disease Control and Prevention (CDC) on this issue. The CDC has explained that, due to a lack of sufficient reliable data and variations in testing protocol throughout the country, serologic or antibody test results should not be used to make decisions about
returning persons to the workplace. The EEOC also confirmed that an employer may not lawfully exclude from the workplace persons who are 65 or older or pregnant, both of which factors place the individual at a higher risk from COVID-19.
Antibody Testing
The EEOC explained that the Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.” A COVID-19 antibody test is a medical examination under the ADA. Because such a test does not meet the ADA’s “job related and consistent with
business necessity” standard, given the inaccuracies of such testing to date and the lack of correlation between test results and future immunity to COVID-19, an employer cannot require an employee to undergo such a test as a condition of returning to the workplace. Such test results, at this time, simply fail to provide employers with sufficiently reliable information to enable employers to make informed, accurate decisions that will affect employees’ safety in the workplace. To the contrary, an employee who enters the workplace with an active case of COVID-19 will pose a direct threat to the health of others. Accordingly, an employer lawfully may administer COVID-19 testing to employees before they enter the workplace to determine if they have the
virus and to exclude those who test positive. The EEOC guidelines also encourage employers to require all employees to observe infection control practices while on the job, including physical distancing, regular handwashing, and the use of personal protective equipment.
Conditions Increasing Risk
The EEOC and the CDC recognize that persons who are pregnant or 65 years of age or older face an increased risk of harm from exposure to COVID-19. Despite that fact, an employer cannot assert those conditions to exclude such persons from the workplace. Such action will be deemed to
violate the ADA. EEOC guidelines confirm, however, that employers are authorized to discuss with new hires or persons about to return to the workplace who face a heightened risk of harm due to such conditions reasonable accommodations that could help reduce the possible risk from such exposure. These accommodations can include working remotely (teleworking), changes in the work environment (i.e., one-way aisles, use of plexiglass or other barriers between coworkers or customers, modified work schedules, and restructuring of marginal job duties), and staggered shifts, among many others. The EEOC stresses the importance of reasonable accommodation and the need for employers to engage in an interactive process with employees to identify and respond to concerns arising from possible workplace
exposure to COVID-19.
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