The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is continuing to issue new guidance to employers regarding COVID-19 issues in the workplace. While the EEOC made it clear in April that a COVID-19 test may be administered as a condition of entering the workplace, the EEOC recently clarified that the administration of COVID-19 antibody tests may not be a condition of entering the workplace.
Antibody tests (also called serologic tests) are distinct from tests that identify the active virus. An antibody test constitutes a medical exam under the Americans with Disabilities Act (“ADA”). Antibody tests, which require blood samples, are more invasive than tests for the active virus, which require only respiratory samples such as a nasal swab. The ADA prohibits employers from compelling workers to submit to medical examinations that are not “job-related and consistent with business necessity.”
The Centers for Disease Control and Prevention (“CDC”) has recommended that antibody tests “not be used to make decisions about returning persons to the workplace,” because one cannot reasonably assume that “individuals with positive [COVID-19] antibody test results are protected from future infection.”
Citing the CDC’s recommendations, the EEOC stated that the antibody test does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees because these tests provide little value, are more invasive, and are not dependable at this time.
Therefore, the EEOC has threaded the needle on this issue by stating a policy under which employers may test an employee for infection, but may not test employees to determine whether they have been infected in the past. However, the EEOC also stated that this policy could change based upon CDC recommendations.