As businesses across the country continue to grapple with how to safely reopen during the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) recently advised employers that requiring mandatory antibody tests for employees before returning to work violates the Americans with Disabilities Act (ADA).
The EEOC issued its new guidance on antibody tests on June 17, 2020 as part of an update to the agency’s technical assistance document that answers employer questions about workplace issues related to COVID-19. Although a previous EEOC update in April expressly authorized employers to conduct viral tests and temperature checks for the COVID-19 virus as a precondition for employees returning to work, that update did not address antibody tests.
It’s important to note that an antibody test is different from a viral test. A viral test determines whether a person has an active COVID-19 infection, while an antibody test assesses whether a person previously been infected and developed antibodies to the virus.
Antibody testing lacking
In its updated guidance, the EEOC cited Centers for Disease Control and Prevention (CDC) guidelines, which state that COVID-19 antibody tests “should not be used to make decisions about returning persons to the workplace.” The CDC’s decision is based on a current lack of scientific data on COVID-19 antibody testing and the level of immunity antibodies may provide.
Based on this lack of evidence, the EEOC determined that, at least for now, a COVID antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations for current employees. That said, the EEOC acknowledged that since antibody testing is still evolving, its guidance may change in the future if such testing becomes more reliable.
The EEOC noted that requiring employees to undergo mandatory viral testing (as opposed to antibody testing) does not violate the ADA standards. This is because viral tests have proven effective and reliable in determining if employees re-entering the workplace are currently infected with COVID-19, and an infected individual poses a direct threat to the health of other workers.
Safely returning to work
In short, if you’re looking to re-open your business and want to put in place safeguards to prevent the spread of COVID 19, you should NOT require employees to undergo COVID-19 antibody testing, as doing so will put you at risk of running afoul of the ADA and potentially getting hit with discrimination lawsuits.
However, requiring your employees to undergo viral testing and temperature checks as a precondition to returning to work are both completely permissible under the ADA. Indeed, public health authorities advise that employers should take every conceivable precaution when developing workplace infection-control practices, and these two preventative measures are among the most effective.
That said, because temperature checks may miss asymptomatic individuals infected with COVID-19, and viral testing only detects infections for a specific time period, viral tests and temperature checks are not 100% effective. To this end, such measures should always be part of a comprehensive return-to-work strategy to prevent COVID-19, involving a variety of other safety precautions, such as social distancing, face masks, and handwashing.
Keep in mind that the EEOC and other regulatory agencies are driven by public health guidance, which is constantly evolving and largely depends on the current stage and severity of the pandemic. Given this, you should consult with us as your Creative Business Lawyer® to ensure you’re staying current with the latest developments in safety and employment-law requirements.
At the same time, we can also offer assistance in developing, implementing, and vetting a comprehensive business reopening strategy. Contact us today to learn more.
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