April 28, 2020
No items found.

COVID-19 testing and Anti-Discrimination Law

Immunity passports”? “Antibody certificates”? As countries around the world consider widespread antibody or immunity testing as a precondition for normal, non-distanced life, many raise the prospect of “second class citizenship” based on COVID-19 immunity. In terms of employment discrimination, guidance from the EEOC—a federal agency charged with enforcing anti-discrimination law—suggests that employers can test for COVID-19 symptoms without violating the law, but does not say much about antibody testing and discrimination.

The Americans with Disabilities Act (ADA) protects employees against discrimination based on disabilities. Generally, the ADA prevents covered employers from excluding individuals with disabilities from the workplace and requires “reasonable accommodation” of employees with disabilities. The ADA also prevents employers from imposing medical exams or other “disability-related inquiries” of their employees unless they are job-related and consistent with business necessity. (Another law, the Genetic Information Nondiscrimination Act GINA, prohibits asking medical questions about an employee’s family members).  

The EEOC has provided guidance for employers on how to keep their workplace safe without violating discrimination law. On April 23, the agency updated this guidance to explicitly state that employers can screen workers for COVID-19. The ADA allows medical inquiries that are “job related and consistent with business necessity,” the guidance explains, and medical screening during a pandemic meets this standard (the guidance emphasizes that the tests in question must be “accurate and reliable” and cannot be used to engage in unlawful discrimination). Furthermore, the agency’s Q and A on the pandemic states that an ADA-covered employer may “require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work.” (It goes on to explain that this inquiry would be permitted “either because [it] would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees”). 

Testing employees for COVID-19 infection doesn’t violate the ADA, but what about testing for antibodies? The EEOC hasn’t issued guidance on that issue yet. The EEOC has stated that employers may not make disability-related inquiries of individuals without symptoms to determine if they are immunocompromised or otherwise at risk for developing the disease. Its guidance, however, leaves the door open for such inquiries if the pandemic becomes “severe or serious” in the eyes of public health officials. This seems to leave the door open to testing asymptomatic employees for antibodies, if that is consistent with public health advisories.

Of course, it’s worth keeping in mind that employers would still need to show that the threat posed by the employee “cannot be eliminated or reduced by reasonable accommodation.” If the immunocompromised or antibody-less employee could be accommodated—say, by working from home—than an employer would have a much weaker argument for conditioning their employment on an antibody test.

Written by Smita Ghosh.

 

Women's Employment Still Reeling from Pandemic’s Effects

January 12, 2021
Gender Discrimination
According to the latest analysis by the Bureau of Labor Statistics, the pandemic and lockdowns continue to have an outsize effect on women’s employment in the U.S. with fewer than half (44.6%) of the jobs women lost between February and December returning. Another way of looking at it is that roughly 12 million jobs simply disappeared. Or, as Representative Katie Porter tweeted, “Women. Accounted. For. All. The. Losses.”

Paid Maternity Leave Finds an Unlikely Champion, But Is That Enough?

January 8, 2021
Pregnancy Discrimination
Paid Family Leave
On the heels of some important wins for paid leave in the 2020 election, paid maternity leave has found a new supporter. One who you might not have expected: conservative co-host of The View Megan McCain. The challenge is, as Monica Hesse notes, “how we can speed up this process so that it doesn’t require every leave-denier to personally birth a child before they also get on board.”

Doctor’s Video Underscores How Structural Racism Permeates the Medical Profession

December 29, 2020
Race Discrimination
One of the most devastating forms in which structural race discrimination appears is in the worlds of medicine and health care where people of color, especially Black people are provided with inferior forms of care, which are often deadly.

Get In Touch

Knowing where to turn in legal matters can make a big difference. Contact our employment lawyers to determine if we can help you.