EEOC To Employers: No Mandatory Antibody Tests

Fox Rothschild LLP

Fox Rothschild LLP

On June 17, 2020, the Equal Employment Opportunity Commission weighed in on the question of whether an employer can mandate COVID-19 antibody tests for its employees.

The answer is “No.”

Antibody tests (also called seriology tests) are intended to determine whether a person was ever infected with COVID-19. It is unknown at this time whether antibodies confer immunity and, if so, for how long.

The EEOC links its guidance to the guidance issued by the Centers for Disease Control and Prevention (CDC). The CDC’s guidance states:

"Serologic testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established.”

Here’s the text of the EEOC’s new guidance:

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?(6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

As the science evolves, this guidance could change. Employers still could choose to offer antibody testing, but an employee’s decision to take the test must be knowing and voluntary. In most states, the employer is responsible for paying for the test. An employer cannot mandate that an employee reveal the results of the test to her employer. Even if the employer is voluntarily provided with the test results, the information must be treated in a confidential manner.

Until there is legislation to permit mandatory testing, an employer should think long and hard before mandating antibody testing.

[View source.]

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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