In late-March and April 2020, the Equal Employment Opportunity Commission (EEOC) released guidance addressing various questions with answers concerning COVID-19 and related workplace disability-related issues under the Americans with Disabilities Act (ADA). Recently, on June 17^th, EEOC updated its guidance to include a new question regarding antibody testing.

Most of the questions concern general employee rights and privacy and employer obligations during the current state of the COVID-19 pandemic. A few of the questions relate to the anticipated gradual return to the office of employees temporarily working remotely due to the pandemic as the crisis subsides.

The EEOC’s April update, inter alia, included a determination that employers can administer COVID-19 testing (i.e. testing for active virus), and recommended that employers do the following:

• Determine that tests are accurate and reliable.

• Review guidance from the Food and Drug Administration (FDA), U.S. Centers for Disease Control and Prevention (CDC), and other public health authorities and regularly check those authorities for updates.

• Consider incidences of false positives and false negatives associated with particular tests.

• Keep in mind that a negative test does not mean an employee will not contract the virus in the future.

• Require that employees continue infection control practices, including social distancing, handwashing, and other cleanliness and disinfecting measures.

The April update was silent on whether its determination regarding COVID-19 testing also included antibody testing. Antibody testing (i.e. serological testing), is able to detect antibodies from a previous infection. However, the test can take one to three weeks for antibodies to develop following onset of symptoms, and it is not certain that antibodies provide immunity or, if so, how long immunity would last – the current reliability and utility of these tests is in question.

The June 17^th update to the EEOC guidance weighs in on antibody testing in the workplace. Specifically, the EEOC provides an answer to the following question:

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 American with Disabilities Act (ADA) may an employer require antibody testing before permitting employees to re-enter the workplace? 

 The EEOC concludes that antibody testing constitutes a medical examination under the ADA, and employers cannot require antibody testing before permitting employees to re-enter the workplace.

“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. “

 It is important to note that as with other types of COVID-19-related guidance, the EEOC will continue to monitor the CDC’s recommendations, and update its discussion on this topic in response to changes in the CDC’s recommendations.

Takeaway

 In general COVID-19 testing methods come with administrative burdens to implement and ensure compliance. Such testing presents privacy implications, particularly with respect to testing that requires a blood sample or swab. Moreover, any information collected should be protected with access appropriately limited, particularly if the organization is using a third party. As issues and concerns around COVID-19 unfold daily, employers must prepare to address the threat as it relates to the health and safety of their workforce.