Specifically, the ADA limits mandatory medical testing to situations where the testing is “job-related and consistent with business necessity.” Months ago, the EEOC informed employers that the agency considers testing designed to reveal if someone has contracted COVID-19 as meeting this standard due to the grave health risks an employee with COVID-19 can pose to their co-workers if the employee comes to the workplace with the virus. Indeed, existing CDC guidelines for office buildings suggest employers screen for COVID-19 symptoms. Until recently, though, the EEOC had not addressed whether tests designed to reveal antibodies for the virus also would be permissible. An antibody test is essentially a blood test that checks whether an individual has COVID-19 antibodies in their system, which can be present if an individual had COVID-19 in the past.
On June 17, 2020, however, the EEOC finally provided clarity on whether employers may require antibody testing before permitting employees to re-enter the workplace. The EEOC made clear that employers may not do so. According to the EEOC, antibody tests do not meet the ADA standard because the CDC’s Interim Guidance provides that antibody test results “should not be used to make decisions about returning persons to the workplace.” According to the CDC, antibody testing, unlike viral testing, does not diagnose whether someone currently has COVID-19. Also, the CDC says that it is still too early to know whether the presence of antibodies will prevent someone from contracting COVID-19 again in the future. Research on whether people can develop COVID-19 immunity remains ongoing. In light of the above, the EEOC declared that an antibody test at this time does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
Be advised that the EEOC plans to continue monitoring the CDC’s recommendations and reserves the right to update guidance in response to changes in the CDC’s recommendations. Accordingly, it is advisable for employers to continue to monitor the EEOC’s website related to COVID-19.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Lee Moylan is a partner in the Litigation Department at Klehr Harrison.