9-24-20 As seen in the Daily Record - Lorisa D. LaRocca, Esq. featured in Legal experts weigh in on hiring issues post-pandemic, Employers must tread carefully to avoid violating EEOC guidelines

Posted on September 24, 2020

Legal experts weigh in on hiring issues post-pandemic

Employers must tread carefully to avoid violating EEOC guidelines

By: Velvet Spicer September 23, 2020 0

As hiring begins post-COVID crisis, employers in some areas of the world are contemplating a new way to help those who have recovered from the virus or who have antibodies gain employment.

In the U.K., Health and Social Care Secretary Matt Hancock has suggested that “immunity certificates” may be provided to individuals who have had the virus. Immunity certificates, or immunity passports, are described as a way of recording that an individual is believed to have immunity to COVID-19 and is presumed unlikely to contract or spread the disease, according to an August report in the Journal of Medical Ethics.

Holding an immunity certificate could grant people freedoms otherwise suspended during partial or full lockdown, such as traveling to and from work and socializing with people outside the home, the report suggests.

But an immunity passport raises a number of questions here in the U.S., not the least of which is whether the practice would violate rubrics associated with the Americans with Disabilities Act, the Rehabilitation Act or other Equal Employment Opportunity laws.

“Making decisions based on an employer’s perceptions or thoughts related to risk or immunity is an area that’s extremely fraught with risk,” said Luke Wright, partner and labor and employment attorney with Harter Secrest & Emery LLP. “The laws in the state and in the country prohibit discrimination in respect to certain protected things; among them are things that perhaps could correlate to COVID risk, like age. Age is a protected class. Disabilities are protected classes.”

The Centers for Disease Control and Prevention has said that the elderly and people with chronic medical conditions such as diabetes, obesity and heart disease are at higher risk for COVID-19. Even without an immunity passport here, employers may be tempted to hire individuals who appear to be younger and healthier than others. That would be a mistake, local attorneys say.

Employers must be very careful when making hiring decisions with respect to protected classes, Wright said.

“Sometimes there’s an employer thought that ‘We know what’s best and want to take care of our people and protect them,’” he added. “Even with the best intention it could have an unintended consequence or even be illegal to make the decisions that are really based on age.”

That’s something that may have been seen during the height of the pandemic, when employers may have encouraged their elderly staffers to work from home or not work at all.

“If an employer were to make a decision and say we’re not going to let anyone of a certain age do any work, period, because we’re worried about them, even with the best intention it could end up having a consequence and having someone say, ‘You can’t make that decision for me,’” Wright said.

Lorisa LaRocca, a partner in the labor & employment practice at Woods Oviatt Gilman LLP, said the Genetic Information Nondiscrimination Act also comes into play in these types of decisions.

“GINA prohibits employers from asking questions about employees’ genetic history or about their family members, family history of any disease or disorders,” LaRocca said. “From a legal perspective, employers would face scrutiny from a GINA framework in terms of even finding out from employees whether or not they have had COVID or whether they have the antibodies.”

LaRocca noted that the Equal Employment Opportunity Commission early in the pandemic issued its own determinations based on what employers could and could not do in regard to the virus.

“At the present time, the EEOC’s guidance is that employers are prohibited from using antibody tests to make any decisions about employees coming to or returning to the workplace, and that those antibody tests would be considered medical exams. The EEOC has determined that they are not job related and consistent with business necessity,” LaRocca said. “From a practical perspective, employers would have a difficult time because they’re not going to be able to have employees undergo antibody tests, and even if they were to ask an employee whether or not they’ve undergone antibody testing, that’s going to potentially implicate a GINA concern.”

Wright also points to EEOC COVID-19 guidelines, which are available on the EEOC website, but he notes that one question in particular could be tricky. That question also concerns an employer requiring antibody testing before permitting employees to re-enter the workplace. EEOC’s answer is no, although COVID-19 tests are permissible under the ADA. But the organization also said it will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

“Right now if an employer were to call me and say they want to only allow people to come to work who have had a vaccine or who have demonstrated cases of COVID or who have antibodies, under the theory they’re protected and can come to work, I’m concerned with that approach because I worry it could violate disability discrimination laws and I would point them to this guidance,” Wright said. “But depending upon how the science evolves it could be that you see the EEOC saying you can require this or you see the state saying do something different under the following circumstances.

“As an employer I would really be looking to the enforcing agencies for guidance that would let me do it,” Wright added. “I wouldn’t be making those decisions on my own. I think you’re walking in an area that most employers aren’t qualified to walk in.”

vspicer@bridgetowermedia.com / 585-653-4021 / @Velvet_Spicer

Lorisa D. LaRocca