On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.


Continue Reading More on the Return to Work: the EEOC Issues New COVID-19 Related Guidance

We hope that you, your families and colleagues are safe and doing well. We know these are difficult and challenging times for everyone, including US employers.  As always, we are here to help you navigate the complexities of our current — and quickly changing — environment.

Click here to view our 40-minute on-demand webinar —

As a further update to our post here, on Thursday, the DOL issued an additional 22 FAQs on FFCRA, addressing required certifications for leave, healthcare coverage during leave, intermittent leave, teleworking, and several other topics. In a major and unexpected twist, DOL takes the position that FFCRA leave is not available if an employer

The Department of Labor just published its first round of guidance on the FFCRA, including two fact sheets and a FAQ explaining key provisions of the paid sick leave and paid child care requirements:

The DOL also published sample FFCRA posters that federal and private employers are required to post in the workplace, as well as a FAQ on how and where to post them. Notably, emailing the posters to remote workers satisfies the posting requirements.

Importantly, DOL has elected to make the paid leave provisions of the FFCRA effective April 1, 2020, instead of the anticipated April 2 date. The DOL also announced a 30-day suspension on enforcement actions if employers attempt in good faith to comply with the FFCRA.


Continue Reading New Guidance and Required Posters Issued by the DOL for Paid Sick and FMLA Leave under the Families First Coronavirus Response Act (FFCRA)

On Friday, March 20, 2020, the Internal Revenue Service (IRS), US Department of Labor (DOL), and US Department of the Treasury published a joint news release (Release) regarding tax credits available to employers who will be required to provide paid sick and family care leave for COVID-19-related purposes under the Families First Coronavirus Response Act

Everything You Need To Know Right Now

After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many