EEOC: You Can’t Require Employees to Undergo Antibody Testing

Earlier in June, the Equal Employment Opportunity Commission (EEOC) issued new guidance concerning the use of COVID-19 antibody testing. Relying on the Centers for Disease Control and Prevention’s (CDC) interim guidelines, the EEOC affirmatively stated employers cannot require COVID-19 antibody testing before permitting employees to reenter the workplace.

Antibody Test Is a Medical Exam

The CDC’s interim guidelines state that antibody test results “should not be used to make decisions about returning persons to the workplace.” The EEOC stated that an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), which are only appropriate when they are “job-related and consistent with business necessity.”

Because of the guidance from the CDC, at this time, an antibody test doesn’t meet the ADA’s “job-related and consistent with business necessity” standard. Therefore, requiring antibody testing before allowing employees to reenter the workplace isn’t allowed under the ADA.

Viral Testing Still Allowed

Employers are still permitted to require employees who have symptoms or a COVID-19 exposure to undergo a viral test to detect current infections. Such tests are permissible under the ADA because they are job-related and consistent with business necessity since an individual with the virus will pose a direct threat to the health of others.

Before requiring mandatory viral testing, you must ensure they are accurate and reliable. For example, you may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities, and check for updates.

You may wish to consider the incidence of false positives or false negatives associated with a particular test. You should also remember that accurate testing only reveals if the virus is currently present, and that a negative test doesn’t mean the employee will not acquire the virus later.

Takeaway

The EEOC has stated it will continue to closely monitor the CDC’s recommendations and will update the guidance if warranted. To prevent the transmission of COVID-19, the agency has further reminded employers they should still require employees to observe infection control practices in the workplace, such as social distancing and regular handwashing.

Kristin Simpsen is an attorney with the Oklahoma City, Oklahoma, office of McAfee & Taft. She can be reached at kristin.simpsen@mcafeetaft.com.

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