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Employment Law Update

COVID-19, discrimination, DACA, and immigration developments

By Mike O’Brien bio

EEOC says no to COVID-19 antibody testing: The Equal Employment Opportunity Commission (EEOC) recently (6/17/20) updated its COVID-19 guidance to indicate that employers should not be requiring employees to submit to antibody testing. Here is the verbatim Q&A (found at EEOC Guidance):

Question: (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?

Answer: 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.

EEOC says ADA does not require COVID-19 accommodation for employees with high risk family members: The Equal Employment Opportunity Commission (EEOC) also recently (6/11/20) updated its guidance to indicate that an employee is not entitled to an Americans with Disabilities Act (ADA) accommodation under the ADA to avoid exposing a high risk family member to COVID-19. Here is the verbatim Q&A (found at EEOC Guidance):

Question: (D.13.): Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

Answer: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

EEOC unveils new online visual enforcement data presentation: The EEOC has introduced a new way of illustrating discrimination law enforcement statistics, see: New EEOC Visual Enforcement Data. The purpose of these visuals, according the EEOC’s Office of Enterprise Data and Analytics (OEDA), is to display enforcement data in a simple, comprehensible, and visually appealing way for all the EEOC’s stakeholders. The visuals illustrate data over five years for charges of employment discrimination and resolutions for all charges, retaliation charges, and sexual harassment charges. The charts may be helpful to employers trying to assess their claims risk by charge and in various locations. For example, the data includes a state by state breakdown in charge statistics. Utah has only .3% of all charges nationally. However, Utah has 1.5 charges of discrimination per 10,000 people compared to neighboring states Idaho with 0.5, Wyoming with 1.2, and Colorado with 4.5. California isn’t much higher than Utah, with 2.2 charges per 10,000 people. D.C. leads the way with 14.1, followed by Georgia and Alabama with 9.6 and 9.5, respectively. The data is interesting in other ways too, for example showing that in 2019, about 70% of EEOC charges were dismissed with findings of no reasonable cause. Retaliation, race bias, disability discrimination, and sex discrimination continue to be the most frequently-filed charges.

Trump proclamation suspends entry of most non-immigrant workers through December 31, 2020: On June 22, 2020, President Trump issued his Proclamation Suspending Entry of Aliens who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. This executive order bans the issuance of H-1B, H-2B, L, J and L entry visas (and those for spouses and children) through December 31, 2020. However, the order only applies to foreign nationals who are both: 1) outside the US; and 2) do not already have a valid non-immigrant visa stamp. Consequently, the order does not affect those foreign national workers and their spouses who are already in the U.S. in valid nonimmigrant visa status, i.e. those with a USCIS approval notice or pending application.

Supreme Court rules that DACA was not legally terminated: On June 18, 2020, the U.S. Supreme Court denied the Trump Administration’s attempt to end the Obama-era Deferred Action for Childhood Arrivals program (DACA), which gives temporary protected status and employment authorization to qualified “Dreamer” children of undocumented U.S. immigrants. Given the decision, the DACA program will continue in existence until such time as the Administration goes through the necessary steps, and with adequate justification, to terminate DACA. In the meantime, DACA recipients may continue to work legally in the United States as long as their status remains current and/or is timely renewed.









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