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| EEOC Says Employers Cannot Require Antibody Tests |
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by Tony Stergio The EEOC on Wednesday issued new guidance which established that businesses cannot make employees take COVID-19 antibody tests. The EEOC determined that COVID-19 antibody tests constitute medical examinations under the Americans with Disabilities Act (“ADA”). Antibody tests cannot reveal whether an employee presently has COVID-19, as such tests only show whether the employee previously had the virus and has developed antibodies to the virus (which may or may not provide the employee with future defenses against the virus). Therefore, the EEOC determined that these tests fail to meet the ADA's job-related-and-consistent-with-business-necessity standard and are prohibited under the ADA.
The EEOC has previously stated that employers can require employees to submit to tests that detect the active presence of the virus itself. The new guidance does not affect the EEOC’s stance on COVID-19 virus tests, and such tests are still permitted.
Based upon this guidance, employers cannot use COVID-19 antibody test results to make decisions about returning employees to the workplace. Requiring antibody testing before allowing employees to re-enter the workplace would violate the ADA.
High Court Says Title VII Protects Gay, Trans Workers
The U.S. Supreme Court handed down a landmark decision Monday, holding that Title VII protects workers from discrimination based on sexual orientation and gender identity.
In a 6 to 3 decision, the Court held that Title VII ban on discrimination "because of ... sex" covers sexual orientation and gender identity. This decision makes clear it is “unlawful ... for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual's sexual orientation or gender identity ('LGBTQ status').” Therefore, employers must avoid sexual orientation and gender identity discrimination when making employment-related determinations. Employers should also revise all anti-discrimination policies to now include sexual orientation and gender identity. |
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| Texas Supreme Court Denies Review of Ruling against Austin Paid Sick Leave Ordinance |
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by Andy Clark In another blow to local paid sick leave ordinances in Texas, the Texas Supreme Court denied review of the state court of appeals ruling, which struck down Austin’s ordinance. This decision directly impacts the Austin City ordinance, as it leaves in place the Austin Appeal’s court decision finding that the Austin City ordinance was unconstitutional. As a result, Austin’s paid sick leave ordinance will not go into effect.
This decision will also indirectly impact the local ordinances passed in Dallas and San Antonio.
Dallas
In March 2020, a federal court in the Eastern District of Texas entered a preliminary injunction against Dallas’s ordinance. The federal court followed the Third Court of Appeals’ decision, stating “there is no reason to believe the Texas Supreme Court would reach a different conclusion”. The Texas Supreme Court’s denial of review bolsters federal court’s decision. As a result, the Dallas ordinance is still not in effect and will not likely go into effect in the future.
San Antonio
Because the Texas Supreme Court has determined the Austin Appeals Court’s decision contained no error that required reversal, the San Antonio Court of Appeals will likely rule similarly. Thus, then San Antonio’s ordinance likely will not go into effect.
For now, none of the Texas paid sick leave ordinances are in effect. Until the courts or Legislature further address these ordinances, employers do not need to abide by them. Employers should, however, continue to monitor federal and state court developments. |
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| Important Information on COVID-19 |
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| Celebrating 30 Years in 2020 |
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| Founded in 1990, with offices in Houston and Austin, Andrews Myers, Attorneys at Law, is a corporate law firm and recognized market leader in Texas construction law. The firm focuses on the concentrated disciplines of commercial litigation, construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues including bankruptcy and insolvency, energy, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com. |
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