Newly released guidance from the U.S. Equal Employment Opportunity Commission (EEOC) addressed questions related to COVID-19 and the Americans Disabilities Act (ADA), the Rehabilitation Act and other equal employment opportunity laws, which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries.
In general terms, the EEOC explains that, in light of current CDC Interim Guidelines which provide that antibody test results “should not be used to make decisions about returning persons to the workplace,” antibody tests constitute medical examinations under the ADA and, as such, do not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. As such, per the EEOC, the ADA does not allow employers to require antibody testing (commonly referred to as rapid tests) before allowing employees to re-enter the workplace. Please be mindful that antibody testing is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral or molecular test). With regards to viral or molecular tests, the EEOC has stated that they are permissible under the ADA. Therefore, employers may require COVID-19 viral or molecular testing before allowing employees to re-enter the workplace.
If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:
|Juan J. Casillas Ayala
|Luis F. Llach-Zúñiga
|Israel Fernández Rodríguez
|Luis R. Ramos Cartagena
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