As lockdowns stemming from COVID-19 have been ordered and lifted across Michigan and the country, it is clear that we will be living with this pandemic for quite some time. For employers, the pandemic and its effects have presented some challenges; for example, how do you enact (legal) measures that reduce some health risks while respecting the rights of employees (all while keeping the business running)?
To both help business owners understand what they may do to keep employees safe and inform employees of their rights, the Equal Employment Opportunity Commission has recently provided guidance on staying in line with the ADA, Title VII, and other employment protections. This blog will provide some answers to frequently asked questions that were covered in the EEOC’s guidance.
May Employers Require a COVID-19 Test Before Allowing an Employee Back to Work?
Yes, if certain conditions are satisfied. Because a COVID-19 test is considered to be a medical examination, employers may require the completion of this test if it is “job related and consistent with business necessity.” In the context of COVID-19, employers will contend that an employee with the virus poses a direct threat to the health of the other employees. Worth noting, though, is that antibody tests are currently not considered to be job-related and consistent with the necessity of business. So, not every COVID-related test is acceptable.
May Employers Ask Certain At-Risk Individuals Not to Come to Work?
Generally, no. Title VII provides for protections for certain classifications of employees, referred to as protected classes: race, color, religion, sex, and national origin. The Supreme Court recently issued a ruling that seems to include members of the LGBTQ+ community as a protected class. Other federal laws protect the rights of pregnant and older employees.
So, employers may not zero in on, say, Asian Americans and ask them not to return to work based on an alleged theory of the origin of the virus. On the other hand, employers may not insist that pregnant employees or workers protected by the Age Discrimination in Employment Act (ADEA) stay away from the workplace because of their heightened risk of severe complications from the virus.
If Employers Have Allowed Employees to Work Virtually, Are They Required to Offer Telework Indefinitely?
No. Allowing employees to work virtually in order to prevent the spread of the virus is likely in line with recommendations from the CDC and many local health authorities. However, employers are not required to allow teleworking after the public health measures are no longer useful. If an employer was forced to alter essential functions of an employee’s position during the pandemic, they are generally within their rights to restore these functions after the threat has subsided.
Conclusion
Guidelines provided by the CDC and other health agencies are meant to exist in harmony with the various state and federal laws that protect the rights of employees. That said, this is certainly uncharted territory for the vast majority of U.S. employers. If you need help understanding whether or not your rights as an employee have been violated due to the current health crisis, reach out to Attorney Carla D. Aikens today by calling 844-835-2993. Our firm is also offering free virtual consultations for prospective employers.
Carla D. Aikens, P.L.C.
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