As non-essential businesses reopen, employers are grappling with issues of when and how to safely return employees to the workplace. The use of antibody testing of employees has been posited as a potential screening tool to assist employers in their decision making, by identifying those employees who had COVID-19 and thus may have developed some measure of immunity. On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 related guidance to make clear that, under the Americans with Disabilities Act (ADA), an employer may not require antibody testing before permitting an employee to re-enter the workplace.
Employers May Not Require COVID-19 Antibody Testing
In interpreting what is permitted under the ADA, long established EEOC guidelines provide that an employer may require a medical examination or medical inquiry for current employees only if it is “job related and consistent with business necessity.” Using this standard, the EEOC determined that antibody testing is a medical examination, however, mandatory testing of this type does not meet the “job related and consistent with business necessity test.” The guidance does not address whether employers may offer voluntary antibody testing to employees.
In reaching its conclusion, the EEOC relied upon the CDC’s Interim Guidelines for COVID-19 Antibody Testing, stating that “[s]erologic test results should not be used to make decisions about returning persons to the workplace.”
The CDC guidelines cover a broad range of issues involving antibody tests, including different types of tests, limitations of testing, and recommendations for use of testing. The CDC standards take into account the current unreliability of antibody test results, which can produce both false negative and false positive test results for any number of reasons, as well as the lack of scientific data on COVID-19 antibodies, infectiousness and immunity.
Employers May Test for COVID-19
Finally, the EEOC guidance reiterates prior guidance stating that testing employees for COVID-19, however, is allowed. In that guidance, the EEOC also noted that the ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” However, unlike with antibody testing, the EEOC determined that, consistent with this standard, employers may elect to test employees for COVID-19 prior to their entry into the workplace to determine if they have the virus. An employer’s ability to do so is premised on the fact that an individual who has the virus poses a “direct threat to the health of others.