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As workplaces begin to operate in the landscape of the COVID-19 pandemic, many employers are seeking to strike a balance between protecting employees and community members while also respecting employees’ rights under the Americans with Disabilities Act. The EEOC has continued to post updated guidance to help employers navigate this unchartered territory. Below are some recent topics the EEOC has discussed:

Antibody Testing

Employers cannot require employees to take antibody tests before returning to the workplace. Antibody tests reveal whether individuals have developed antibodies to COVID-19, indicating they had the virus at one point in time. Because an antibody test constitutes a medical examination under the ADA, an employer must show it is “job related and consistent with business necessity” in order to require that employees take them and share results. The EEOC says employers cannot reach this standard with regards to antibody testing. However, this does not change the fact that COVID-19 viral tests are permissible under the ADA.

Accommodations to Prevent Spread to Vulnerable Family Members

Employees who live and/or care for individuals who are more susceptible to serious illness from COVID-19 may seek accommodations at work. However, the ADA does not require an employer accommodate an employee who does not personally have a disability, so such accommodations are not legally required. Employers may certainly choose to provide them if they wish to do so.

Virtual Harassment

Employees who are working from home are not immune to harassment in the workplace. Should an employee complain of harassment related to their employment, be it through emails, calls, video chats, or test messages, employers should take the same responsive action as if it happened in the workplace.

Providing Accommodations for Employees Returning to the Workplace

Recently, many employers have wondered how they should protect their most vulnerable employees without singling employees out based on protected characteristics. Employers can avoid these difficult decisions by providing all employees with the information they need to request an accommodation in the workplace while notifying them of all the CDC-listed medical conditions that place people at higher risks of serious illness if they contract COVID-19. This way, employees can self-identify as high-risk while possessing the necessary resources to request a reasonable accommodation.

Flexibility for Older Workers

The CDC has explained that individuals over the age of 65 are at a higher risk for a severe case of COVID-19 if they contract the virus. While employers may want to require employees in this age group to stay at home, excluding employees from the work place based on their age violates the Age Discrimination in Employment Act. However, employers can provide additional flexibility to employees in this age group, even if it results in younger works being treated less favorably in comparison.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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