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Andrews Myers
We Mean Business in Texas
EEOC Says Employers Cannot Require Antibody Tests
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.
Texas Supreme Court Denies Review of Ruling against Austin Paid Sick Leave Ordinance
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. 

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.
Important Information on COVID-19

June 05 -- PPP Flexibility Act
June 04 -- Phase III Texas | OSHA Updates 
May 27 -- PPP Forgiveness | Rent Deferment | Hidalgo Order 
May 19 -- Andrews Myers Monthly Law Alert | May 2020 
May 13 -- Good Faith Certification | EEOC & OSHA Updates 
May 06 -- Governor Abbott Accelerates Plan to Reopen Texas
April 28 -- Governor Abbott's Phased Plan to Reopen Business
April 24 -- New PPP and EIDL Funds | Employee COVID-19 Testing
April 23 -- COVID-19 Update | Harris County Face Cover Order
April 21 -- COVID-19 Update | Legal Update | 4.21.2020
April 17 -- New Orders Issued by Governor | COVID & eDiscovery
April 16 -- PPP Funds Depleted | CDC Update
April 14 -- Austin and Travis County Issue Updated Orders
April 13 -- New Programs for Small Businesses | OSHA Updates
April 07 -- PPP & 250 Billion Boost | EIDL | Austin Jobsite Poster
April 06 -- COVID-19 | Legal Update | 4.06.2020
April 03 -- Revised PPP Application| Webinar | Rising Stars
April 02 -- City of Austin Accepts GA 14 Executive Order
April 01 -- Commercial & Multifamily Construction
March 31 -- Governor Issues Support for Construction Industry
March 31 -- COVID-19 | Legal Update 3.31.2020
March 30 -- The CARES Act of 2020 Further Explained
March 29 -- The CARES Act of 2020
March 27 -- UPDATE | Providing Paid Sick Leave and FMLA
March 25 -- City of Austin Memorandum Causing Confusion
March 24 -- Stay Home, Work Safe
March 24 -- Bankruptcy and Restructuring Options
March 23 -- Not Triggering Force Majeure | Litigation Delays
March 20 -- COVID-19 | Latest Development Impacting our Clients
March 19 -- Texas Governor Issues COVID-19 Executive Order
March 19 -- Mechanic's Liens in the Time of Corona
March 19 -- Trump Signs Law to Grant Paid Sick Leave
March 17 -- CDC Guidelines & The Americans with Disabilities Act
March 16 -- Coronavirus Employment Obligations
March 13 -- COVID-19 & Force Majeure

About Andrews Myers
Celebrating 30 Years in 2020
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
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