Facilities offering COVID-19 antibody tests are ubiquitous, offering to provide information on whether individuals have been exposed to COVID-19 and have developed a protective immunity to the virus. However, the EEOC recently released a statement that antibody tests constitute medical exams and are not permitted under the Americans With Disabilities Act (ADA).
The ADA governs disability-related inquiries and medical exams. It prohibits employers from excluding employees with a disability from the workplace for health and safety reasons unless the employee poses a direct threat. When an employee does pose a direct threat, an employer is permitted to make such an inquiry or medical exam because it is job-related and consistent with a business necessity. Any mandated medical exam, however, must be accurate and reliable.
From the beginning of the COVID-19 crisis, the EEOC consistently has directed employers to refer to guidance from the CDC on issues relating to direct threats to the workplace and to follow the most current CDC information to maintain workplace safety.
A few weeks ago, the CDC issued interim guidance regarding antibody testing for exposure to the SARS-CoV-2 virus. While the information in the guidance is largely directed at healthcare entities and practitioners, it also provides useful guidance to employers on the present state of antibody testing. It recommends that antibody tests “should not be used to make decisions about returning persons to the workplace.” The CDC’s concern is due in part to the lack of existing scientific information about the existence and effectiveness of an antibody response to prevent reinfection.
So it’s not surprising that the EEOC released an update to its Technical Assistance Questions and Answers, stating that the ADA prohibits employers from requiring employees to submit to an antibody test prior to re-entering the workplace. Though keep in mind that a change in the EEOC’s position may occur if and when new scientific information develops relating to the reliability of antibody tests and the CDC changes its recommendation.
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What does this mean for you?
As employees return to work, you may continue to take employees’ temperatures or mandate that they submit to a diagnostic viral test that detects whether an employee is currently infected with COVID-19 and would pose a direct threat to the workplace.
Despite the numerous facilities offering antibody testing, however, the antibody tests are unreliable at determining whether the presence of antibodies equates with immunity to the virus. As a result, you must not require employees to submit to antibody testing. Doing so, at least at this point, would run afoul of the ADA and subject you to liability.