The EEOC has again updated its guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Here are the things you need to know:

• Employers may not require antibody testing before permitting employees to return to the workplace. However, employers can require COVID-19 tests to determine if an employee has an active virus, as that will determine whether the employee could be a direct threat to others.
• Employers are not required to provide an ADA accommodation to an employee to avoid exposing the employee’s family member who is at higher risk. However, employers are free to provide workplace flexibilities, like working from home, if they choose.
• Employees can request flexibility in work arrangements before returning to the physical workplace. In fact, the EEOC suggests that employers send a general notice to all employees set to return to the workplace and invite them to request accommodations for disabilities if needed, with instructions about what CDC-listed medical conditions place people at higher risk for COVID-19 and who the employee should contact.
• Reasonable disability accommodations are required when an employee requests an alternative method during the screening process before employees enter a worksite. Employers may need to request additional information or medical documentation if the disability is not obvious or already known.
• Employees over age 65 and pregnant employees cannot be involuntarily excluded from the workplace due to concerns that they are at higher risk for from COVID-19. Certainly, employers are free to provide flexibility to these employees even if they do not provide it to other workers; they simply cannot force it upon those groups.

We will continue to bring you updates as they are released.

By Rebecca D. Bullard, rbullard@dsda.com