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Published on Tuesday, June 23, 2020

Quick Hits - June 24, 2020

Quick HitsAntibody tests cannot be required for return to work per EEOC:  The EEOC provided a new FAQ regarding antibody testing.  The EEOC states that 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.

New Executive Order impacts worker visas:  On Monday, June 22, 2020, President Trump issued an Executive Order to suspend entry to the U.S. by all foreign nationals (with limited exceptions) who hold H-1B, H-2B, J-1 and L-1 status, including any dependent family members. This provision takes effect on June 24, 2020. The proclamation also extends a previous order that banned certain immigrant visas (i.e., green cards) from being issued by the U.S. Department of State. Both provisions will last until at least December 31, 2020.  Importantly, the proclamation provides several exceptions to allow entry for H-1B, H-2B, J-1, and L-1 holders (including their dependent family members): individuals who hold a valid visa stamp in their passport but are outside of the U.S. on the effective date of the proclamation; and individuals who possess an official travel document other than a visa (e.g., a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.  Source:  Seyfarth Shaw 6/22/20

Employers need to watch for discrimination against Asians:  With the virus apparently coming from China, East Asians have borne the brunt of harassment because of the situation.  The EEOC recommends that managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the Coronavirus or its origins.  All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment.  Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.  Harassment of employees at the worksite may also originate with contractors, customers, or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes.  Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems before they rise to the level of unlawful discrimination.

EEOC only permits de mininis incentives for wellness plans:  Employers would only be able to offer minor incentives to encourage employees to participate in wellness plans, under a rule proposed Thursday by the U.S. Equal Employment Opportunity Commission (EEOC).  Commission members voted 2-1 to approve the proposed rule during a remote public meeting. The proposal, according to the EEOC, seeks to clarify what level of incentives employers may lawfully offer, without violating the Americans with Disabilities Act, to encourage employee participation in wellness programs that require disclosure of medical information.  The rule was drafted after the U.S. District Court for the District of Columbia vacated a portion of the EEOC’s previous ADA regulation on the matter in a lawsuit brought by the AARP, which later sued Yale University because it charged some employees $1,300 annually, or $25 per week, if they did not to participate in the university’s workplace wellness program and share their private medical information.  Now that commissioners have voted to approve the proposed rule, it will be reviewed by the White House Office of Management and Budget. If approved, the proposed rule will be published, and the public will be able to submit comments about it before it is finalized.  Source: Senior Living 6/12/20

24% of workforce is at risk for COVID-19 complications: Almost one in four U.S. workers is at high risk for serious complications from COVID-19 if infected, according to a new analysis from the Kaiser Family Foundation.  The analysis estimated 37.7 million workers, or 24% of employed U.S. adults in 2018, are at high risk, including 10 million who are 65 years or older and an additional 27.7 million with pre-existing medical conditions.  Many of that population are likely working remotely or unemployed following months of economic depression, KFF said, but would be at serious risk if they were to return to sustained in-person work. That could throw a wrench in employers' plans to reopen offices and resume a normal course of operations, even as more than half of states report rising COVID-19 infections.  Source:  HR Dive 6/15/20

IRS allows for employees to donate PTO to charities: Notice 2020-46 allows employees to forgo their paid time off balances to allow their employers to make donations to charities that are assisting individuals impacted by the COVID-19 pandemic.  Under existing leave donation policies, an employee can generally elect to donate accrued but unused vacation, sick, or personal leave to a leave bank, which in turn can be used to assist other employees who are impacted by either medical emergencies or certain presidentially declared natural disasters. In such cases, the leave donors are not taxed on the leave donated, while the leave recipients are taxed at their regular rates of pay. Notice 2020-46 expands those leave donation opportunities by allowing employees to forgo their vacation, sick, or personal leave to allow their employer to make cash payments before January 1, 2021, to nonprofits for the relief of victims of the COVID-19 pandemic in affected geographic areas. Employees electing to forgo leave will not be treated as having actually or constructively received gross income or wages. The amount of cash payments to which this guidance applies should not be included in Box 1, 3 (if applicable), or 5 of the Form W-2.  Also, the electing employees may not claim a charitable deduction with respect to the value of forgone leave.  Source: Littler 6/12/20

Are COVID-19 lawsuits something to worry about?  Through last week, there were 2,741 lawsuits filed in the U.S. over COVID-19 infections, according to a complaint tracker maintained by the Hunton Andrews Kurth law firm. Many of the cases were over government shutdown orders and which businesses were deemed essential. Only seven came from consumers, and 49 were filed by employees over exposure to the virus or other related injuries.  However, the odds of employee lawsuits could increase if an employee wins a lawsuit in any jurisdiction.  Source:  AP 6/16/20

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