Over the past week, the Equal Employment Opportunity Commission has added to its ongoing COVID-19 technical guidance document, answering a number of questions relating to employee return-to-work plans. Most importantly, the EEOC cautioned employers not to prevent older workers from returning based on fears over COVID-19 risks. While employers are free to advise high-risk employees about exposure dangers, or to provide options (such as continuing telework) to minimize such risks, they cannot mandate that older employees remain away from the place of business.
The EEOC says that the same reasoning applies to pregnant employees. For persons at higher risk of COVID-19 complications due to a medical condition, if the employee is capable of performing the essential functions of the job, with or without accommodations, the employer cannot unilaterally exclude them from the workplace.
The technical guidance also addresses some other return-to-work issues. The EEOC makes clear that employers are not required to accommodate employees who request telework or other measures based on fear of infecting a high-risk family member. While companies may voluntarily agree to provide such measures, they are outside the scope of federal disability discrimination laws. The EEOC again reminded employers to protect employees of Chinese or Asian heritage from harassment or discrimination based on COVID-19 misinformation.
On Wednesday, the EEOC added a new response to the guidance, stating that employers cannot require employees to take a COVID-19 antibody test as a condition of returning to work. While the EEOC has blessed use of COVID-19 infection tests in the workplace, the agency drew a distinction between these tests and screening for past COVID-19 infections. The EEOC says that antibody screenings are an impermissible medical examination under the ADA because there is no business necessity for conducting the tests or making employment decisions based on their results.
The updated technical guidance can be found here.