EEOC Leans On CDC To Reject Antibody Testing In Employer Return-To-Work Programs

Vinson & Elkins LLP

Vinson & Elkins LLP

In its COVID-19 Q&A guidance, the EEOC has concluded that, while an employer may require reliable virus testing as part of its workplace screening procedures, COVID-19 antibody tests are not similarly permissible, at least for the time being.

The Americans with Disabilities Act (the “ADA”) restricts employers’ ability to conduct medical examinations of their employees, unless those examinations are both “job-related and consistent with business necessity.” The EEOC has concluded that this standard is met for COVID-19 viral testing — which is testing that confirms whether the test recipient is infected with COVID-19 — since an infected employee would pose a direct threat to their co-workers if allowed into the workplace. Even here, the EEOC guidance is limited to employees who are being asked to return to the physical workplace; employers may not similarly require that their remote employees undergo viral testing.

Given this guidance, employers may think “If we can test for the virus, then we should be able to test for virus antibodies!” However, the EEOC’s new guidance rejects that mode of thinking. Its stance appears to be based on the CDC’s evolving Interim Guidelines for COVID-19 Antibody Testing, which notes that medical data on COVID-19 immunity remains under-developed and that the risk of false positives in antibody testing remains high in many areas of the country. The EEOC left open the possibility that its guidance could change in response to updated recommendations from the CDC.

When employers choose to test for the virus (not virus antibodies), they should keep a number of other considerations in mind. They will need to ensure that any screening procedures imposed are accurate and reliable (employers may consider checking the FDA’s COVID-19 guidance in order to identify safe and reliable virus testing, as well as staying up to date with applicable CDC guidance). Any medical examinations required should also be treated as employee-confidential medical information under the ADA, as noted in our previous post on return-to-work considerations. Finally, any screening procedures that the employer uses to determine if employees have COVID-19 should be applied to all employees who are returning to the employer’s premises, rather than to a subset of employees. This does not include questions or examinations directed to employees for whom employers have an objective basis to think they might have the disease (e.g., an employee who has a persistent hacking cough at work).

Should an employee refuse to comply with an employer’s lawful screening procedures, the employer may bar that employee from reentering the workplace. Note, however, that requests for alternative screening procedures due to underlying medical conditions or religious belief should be considered requests for reasonable accommodation under the ADA or Title VII respectively, and treated accordingly.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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