Legal Updates

This week, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers on permitted employee COVID-19 antibody testing.  An employer may not require employees to undergo antibody testing as a condition to re-enter the workplace.  Such a requirement violates the Americans with Disabilities Act (ADA) since the antibody test does not satisfy the ADA standard that permits medical examinations of employees when “job-related and consistent with business necessity.”

This shift is a result of the CDC’s new Interim Guidelines, which state that antibody test results should not be used as a factor in the decision on allowing employees to return to work. The EEOC previously permitted required antibody testing on the grounds that the results provided information relevant to whether an employee posed a “direct threat” to others in the workplace. The theory was that presence of antibodies in an employee’s system suggested s/he was no longer at risk for COVID-19 infection and, therefore, would pose no threat to others. The modified guidance likely results from evolving understanding on the part of the CDC and the medical community that there is uncertainty as to the reliability of antibody testing and the significance of test results. The consensus now appears to be that antibody testing is no longer conclusive of an individual’s immunity and, therefore, cannot be used as part of the “direct threat” analysis permitted under the ADA.

The prohibition on antibody testing as a condition to returning to work has no impact on the EEOC’s guidance on COVID-19 viral tests. That is, required COVID-19 testing for employees is still permitted under the ADA.

This significant change in permitted testing as a condition to an employee’s return to work reinforces the need for employers to stay apprised of the evolving guidance and updates from federal, state and local authorities to assure that their screening or return-to-work policies remain in compliance with applicable laws and regulations.