We recently posted a blog informing our readers that the EEOC permits companies to test employees for COVID-19 in an effort to help keep the workplace safe for employees and customers. However, many employers have been asking about testing employees for the COVID-19 antibodies.
Last week, the EEOC updated its guidelines on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. These new guidelines address the question of antibody testing. The EEOC had this to say about antibody testing:
An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” 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. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
How does the COVID-19 virus diagnostic test differ from the COVID-19 antibodies test?
A COVID -19 diagnostic test determines whether a person currently has COVID-19. Therefore, the COVID-19 diagnostic test permits an employer to make important decisions regarding workplace safety. Thus, in the interest of protecting the workplace, other employees, and customers, the employer may require an employee to take this test so that the employer can require a positive employee to stay home until the employee tests negative for the virus.
A COVID-19 antibody test determines whether a person had COVID-19 in the past. An employee who tests positive for the antibody test means that the employee has already had the virus. Therefore, there is no current benefit to the employer since the employee is no longer a risk to others (as long as the employee tests negative for the virus). Some employers believe that an antibody test would be useful to help them determine which employees are safe to return to work. However, at this time, the CDC does not know “if having antibodies to the virus that causes COVID-19 can protect someone from getting infected again or, if they do, how long this protection might last.”
In conclusion, at this time the EEOC does not permit an employer to require antibody tests. However, an employer may require COVID-19 diagnostic testing.