Employers Take Note – Recent Updates From the EEOC Regarding Antibody Testing and Harassment and Discrimination

June 26, 2020

Downey Brand COVID-19 News and Updates

Employers Cannot Require Antibody Testing

On June 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on COVID-19 issues and clarified that employers cannot require workers to submit to antibody testing before returning to work.  Antibody tests determine whether a person was ever infected with COVID-19 and built up antibodies to the disease.  Recently, the Centers for Disease Control & Prevention (“CDC”) issued guidance explaining antibody tests should not be used as a basis for decisions about allowing workers back on the job.  In light of this guidance, the EEOC declared that requiring employees to submit to antibody tests before returning to work violates the Americans with Disabilities Act (“ADA”).   The ADA requires that any mandatory employee medical exams be “job related and consistent with business necessity.”  Since “antibody test results constitute a medical exam,” the test would have to meet this standard to comply with the ADA.  The EEOC found that requiring an employee to submit to antibody testing prior to returning to work does not meet this standard. Therefore, antibody test results should not be used to make decisions about returning employees to the workplace.

When deciding whether employees may return to work, the EEOC does allow employers to measure employees’ body temperature and implement protocols to determine if the employees entering the workplace have COVID-19, such as requiring workers to answer a questionnaire to determine whether they are actively infected.  Additionally, employers may offer COVID-19 testing to employees .  Employers should ensure they utilize tests that are accurate and reliable.  For example, employers may look to guidance from the U.S. Food and Drug Administration and the CDC about what may be considered safe and accurate testing.

Update Regarding Harassment and Discrimination

On June 11, 2020 the EEOC also provided some clarification regarding harassment and employment discrimination.  The guidelines clarified that employers may not single out or offer different job flexibilities to individuals based on the employee’s sex or other protected characteristics, such as age, religion, national origin, or disability.  For example, an employer may provide telework or modified schedules to employees who have caretaking responsibilities for children at home, so long as this decision is not based on the employee’s sex.  That means that an employer may not give more favorable treatment to female employees than male employees because of a gender-based assumption about who may have the caretaking responsibilities for children.

Additionally, the EEOC discussed the Age Discrimination in Employment Act (“ADEA”), which prohibits employment discrimination against individuals age 40 or over.  This means that an employer may not exclude an employee from the workplace due to the employee’s age, even if the employer is acting for benevolent reasons, such as protecting the employee due to his or her higher risk of severe illness from COVID-19.

The EEOC also warned employers to be alert to demeaning, derogatory, or hostile remarks directed to employees, especially those who are or who are perceived to be of Chinese or other Asian national origin.  Employers should ensure that supervisors know their legal obligations and are able to quickly identify and resolve potential problems in the workplace.  To do so, employers may send a reminder to the entire workforce reminding all employees of Title VII’s prohibitions on harassment, that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.  This applies to all employees, even those who are teleworking.

Downey Brand employment law attorneys continue to track COVID-19 issues impacting the workplace. Please reach out to the Downey Brand attorney you regularly work with, or to any of the attorneys throughout our Firm if you have further questions or concerns.