The EEOC Warns that Antibody Testing Cannot Be Required in the Workplace
On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding COVID-19 and related EEO regulations. The EEOC specified that requiring antibody testing for COVID-19 before returning to work is in violation of the Americans with Disabilities Act (ADA), but viral testing still is permissible.
Viral testing is used to determine whether a person has a current infection, while antibody testing determines if a person had a previous infection. Some have speculated that employees with antibodies are immune from COVID-19 and, therefore, may safely return to work. The CDC says it does not yet know if having antibodies to the virus can protect someone from becoming infected, so the presence of antibodies does not necessarily mean the individual is protected from COVID-19.
The ADA permits employers to require mandatory medical evaluations of an employee if the testing is “job related and consistent with business necessity.” The EEOC has said that individuals suffering from a current infection of COVID-19 pose a “direct threat” to others in the workplace, so viral testing is permitted under the ADA. Antibody testing, on the other hand, does not meet this standard because a previous infection is not a current danger to others in the workplace.
Accordingly, employers should consider this guidance when drafting return to work policies. If viral testing is performed, employers may wish to consult with legal counsel to verify the company’s selection criteria for such tests are documented and applied in a non-discriminatory manner. The EEOC reiterated in its guidance that it may update its directives in response to changes in the CDC’s recommendations, so employers should carefully monitor their local and state health department websites, as well as the CDC.
Should you have any questions regarding the EEOC guidance or how EEO regulations may impact your business, please contact Ms. Luther.
Lindsey K. Self, a law clerk with Eastman & Smith, contributed to this article. She is a recent graduate of the University of Toledo law school.
At the date of publication the above information was correct. It is quite possible the information above has changed as COVID-19 is a rapidly evolving situation.
The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.