Employer Antibody Testing for COVID-19 Violates the ADA, According to New EEOC Guidance

Employment Law

Employer Antibody Testing for COVID-19 Violates the ADA, According to New EEOC Guidance

Jun 19, 2020 | Employment Law

The Equal Employment Opportunity Commission posted an update on June 17, 2020 to its COVID-19 / ADA technical assistance for employers (A.7.) to address whether the ADA permits employers to require COVID-19 antibody or serologic testing before allowing employees to reenter the workplace. The ADA does not permit serologic testing, according to the EEOC.

The ADA, which is enforced by the EEOC, protects employees from employer “medical inquiries or examinations,” unless the employer has an objectively reasonable basis to believe that the employee has a medical condition that, in relevant part, poses a “direct threat” to himself due to a medical condition, like COVID-19. Permissible employee testing under the ADA is limited to only those tests that safely and reliably determine whether an employee has an active case of COVID-19.

A viral test is relevant and allowable under the ADA during the COVID-19 pandemic because it detects whether the individual is currently infected with coronavirus and will pose a direct threat to others, if allowed to reenter the workplace. Similarly, the EEOC has approved mandatory body temperature testing as a condition of allowing an employee to return to work as permitted under the ADA, at least for now, following the guidelines issued by the Centers for Disease Control and Prevention (CDC) that elevated body temperature (above 100.4) is symptomatic of a current COVID-19 infection.

That is not the case with serologic testing, according to both the EEOC and CDC. Serologic testing is backward-looking, measuring only whether an individual has ever been infected with COVID-19 at some point in the past, not whether they are currently infected and pose a workplace safety risk. The EEOC also has expressed additional concerns about the accuracy and reliability of serologic testing, stating in April 2020 that permissible testing under the ADA is limited to those tests that have been deemed safe and accurate, as determined by the CDC and U.S. Food and Drug Administration.

The EEOC has stated repeatedly over the last few months that it will continue to closely monitor the CDC’s recommendations and will provide additional guidance on this issue, in response to any changes in the CDC’s recommendations. Stay tuned for more as the EEOC continues to update its COVID-19 / ADA technical guidance for employers. If you need any assistance in this matter, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.

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In Episode 14 of Employment Law in Focus, attorney Doug Taylor discusses the new amended COVID-19 workplace safety regulations that went into effect on September 8, 2021, in Virginia. Douglas Taylor is a shareholder at Bean, Kinney & Korman focusing his practice...

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