On June 17, 2020, the EEOC updated its technical assistance publication addressing questions arising under federal equal employment opportunity laws in the context of the ongoing COVID-19 pandemic. The federal antidiscrimination agency has added a new Q&A about antibody testing to its guidance, "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."
Antibody testing. An antibody test is different from a test to determine if someone has an active case of COVID-19 (viral testing). The EEOC has already said that COVID-19 viral tests may be permissible under the ADA. Antibody tests, on the other hand, check for antibodies in the blood, which can show whether people have had a past infection with the virus that causes COVID-19. Antibodies are proteins that help fight off infections and usually provide protection against getting a particular disease again.
Cannot be required for workplace re-entry. In new Q&A No. 7, the EEOC points out that the CDC has said in its Interim Guidelines that antibody test results "should not be used to make decisions about returning persons to the workplace" and that "we currently don’t have enough information yet to say whether someone will definitely be immune and protected from reinfection if they have antibodies to the virus."
In view of this guidance, requiring antibody testing before allowing employees to re-enter the workplace is not permissible under the ADA.
Key takeaway. What does this all mean for employers? Under the ADA, all mandatory employee testing must be job-related and consistent with business necessity. The EEOC has concluded that because COVID-19 presents a "direct threat" in the workplace, employers may test for the presence of an active infection. By contrast, antibody tests do not detect active infection and, therefore, do not aid in preventing the spread of COVID-19 in the workplace. Thus, antibody tests are not permissible as a return-to-work requirement.
The EEOC advised that it will continue to closely monitor the CDC’s recommendations and could update this discussion in response to changes in those recommendations.
Source: CCH/Wolters Kluwer