Masks and Testing Under the Americans With Disabilities Act

What COVID-19 tests can you require employees to take and what can you do with customers who come into your place of business without masks? I just want to provide some quick clarification.

Tests

You should be screening employees every day. And, if someone has symptoms, you will want to send them home. However, rather than lose the employee for a couple of weeks when it may just be allergies, you can require them to be tested for COVID-19. But remember, it’s only a snapshot in time. I’m hearing from clients that their employees are dragging out the testing for more paid time off. So, it may be best to make the appointment for them so they can be tested, found to be negative and returned to work sooner.

However, the Equal Employment Opportunity Commission (EEOC) has now issued guidance clarifying that testing for antibodies is not permitted. First these tests are not necessarily reliable. Second, it’s still not known what the presence of antibodies means. Does the person have immunity? If so, how long will the immunity last? Therefore, testing for antibodies serves no purpose other than resolving a person’s curiosity. 

Masks

If your employees have interaction with the public, they must wear masks. I was in a couple of stores lately and was appalled that none of the employees wore them. Those stores have lost a customer.

But the trickier issue is how to handle the customer who comes knocking without a mask. The EEOC makes clear that if the individual has a medical condition that would make breathing difficult with a mask they cannot be required to wear one. I have heard that there are disability advocate groups “testing” businesses looking for lawsuits (as they have for years with accessibility issues).

I find, however, more often than not, that the offender looks like the specimen of health and I suspect the person is just refusing to wear one. Apparently, they don’t understand that it’s not about them; it’s about protecting those around them.

While such actions are inconsiderate, you can’t require a doctor’s note to excuse the mask if the person claims to have a medical issue affecting their ability to wear one. Also, given that people have been shot for insisting on one, you may not want your employees to throw the customer out if they simply refuse.

Hopefully, public shaming by customers will convey the message.

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