EEOC: You Can’t Require Employees to Undergo Antibody Testing
As businesses continue to wait and hope for the opportunity to return to their workplaces, It can be extremely difficult to keep up with the on-going changes in requirements and restrictions on testing of employees.
As a refresher, way back on June 17th, the EEOC issued a 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.
Please continue to our blog for additional information on this as well as the continued allowance of viral testing
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.
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.
Article by Kristin Simpsen, an attorney with the Oklahoma City, Oklahoma, office of McAfee & Taft.