In the process of businesses reopening, employers are faced with many decisions, including whether they are legally permitted to test their employees for the presence of the COVID-19 virus and for its antibodies. On June 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Updated COVID-19 Technical Assistance Publication that restated its prior position that an employer does not violate the ADA and has the right to administer a viral test to its employees to determine if the COVID-19 virus is currently present. However, in its Updated COVID-19 Technical Assistance Publication, the EEOC set forth that an employer cannot require testing for the presence of COVID-19 antibodies before permitting an employee to return to the workplace.
The EEOC noted that an antibody test is different from a viral test. An antibody test shows if a person has ever had the virus, while the viral test shows if the virus is currently present. The EEOC’s previous determination that an employer may choose to administer a viral test was based upon the test being found to be “job related and consistent with business necessity”. Specifically, the EEOC determined that an employer could choose to administer a viral test before permitting an employee to enter the workplace because the virus is a direct threat to the health of the other workers. The EEOC found that the antibody testing does not meet the ADA’s “job related and consistent with business necessity” standard. In making its determination that it did not meet this standard, the EEOC looked to the CDC’s Interim Guidelines for COVID-19 Antibody Testing. The CDC states in its Interim Guidelines that:
Asymptomatic persons who test positive by serologic [antibody] testing and who are without recent history of a COVID-19 compatible illness have a low likelihood of active infection and should follow general recommendations to prevent infection with SARS-CoV-2 and otherwise continue with normal activities, including work.
The CDC further states in its Interim Guidelines that:
Serologic [antibody] test results should not be used to make decisions about returning persons to the workplace; and
Serologic [antibody] test results should not be used to make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.
Based upon the Updated COVID-19 Technical Assistance Publication issued by the EEOC, an employer is permitted to administer a viral test to an employee to determine if the COVID-19 virus is currently present before permitting the employee to enter the workplace. If an employer chooses to administer a viral test, the EEOC emphasized that employer should ensure that the test is accurate and reliable and should review the guidance from the U.S. Food and Drug Administration, the CDC, and other public health authorities. In contrast, an employer is prohibited from requiring an employee to undergo COVID-19 antibody testing before allowing the employee to return to the work place, which such test would not show if the virus is currently present. The EEOC indicated that it will continue to monitor the CDC’s recommendations and could update its determination in responses to any CDC changes.
If you have any specific questions or concerns about the EEOC’s determinations and the impact on your business, please feel free to call one of the attorneys in the Employment Law Group at 1-888-488-2638.