Employers undertaking the reopening process following COVID-19-related shutdown orders are grappling with what measures they can implement to reduce the potential for transmission of the SARS-CoV-2 virus in their workplace. In addition to requiring face masks, mandating physical distancing, and encouraging regular handwashing, some employers also are requiring employees to submit to medical testing as a condition of coming back to work.
Early on in this public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) gave the green-light for employers to require that employees submit to non-invasive temperature testing without running afoul of the Americans with Disabilities Act (ADA) (see our prior post here). The EEOC subsequently updated its guidance to clarify that employers also may require that employees submit to viral testing to confirm the absence of an active COVID-19 infection (see our prior post here).
On June 17, 2020, the EEOC updated its technical guidance on COVID-19 and the ADA with a new Q&A. In it, the EEOC explained that although an employer can require non-invasive temperature testing and can require viral testing to determine whether an employee has an active case of COVID-19, requiring antibody testing before allowing employees to return to work is not allowed under the ADA. The EEOC’s position is based on the Center for Disease Control’s guidelines, which state that antibody test results “should not be used to make decisions about returning persons to the workplace,” and therefore that antibody testing – which is considered a medical examination under the ADA – does not meet the “job related and consistent with business necessity” standard for medical examinations of employees. The EEOC’s position (and that of the CDC) likely stems from the fact that there are currently more than 100 antibody tests being marketed to the public, and that according to multiple government agencies, including the CDC and FDA, many of these tests produce unreliable results.
Accordingly, although employers may continue to require employee temperature testing and may test employees for COVID-19 infection, at this time, employers may not require employees to submit to antibody testing as a condition for returning to work. As the EEOC itself noted, this may change over time based on updated CDC guidance, which no doubt will evolve as a greater understanding of the coronavirus is reached, particularly with respect to whether the presence of antibodies means that a person cannot infect others (or themselves be re-infected), and as antibody testing becomes more accurate and therefore more reliable.