Employers everywhere are struggling to bring employees back into the workplace in a way that creates the safest environment for everyone. I wrote last month on EEOC Guidance for bringing higher risk employees back to work [“Returning Higher Risk Employees to Work: EEOC COVID-19 Guidance Updates”]. That version of the EEOC Guidance made it clear that employers could require specific medical tests such as a temperature check or a COVID-19 virus test to detect the presence of the COVID-19 virus before permitting employees to enter the workplace. Since that time, the EEOC has updated their guidance several times, most recently to address the new question of whether under the Americans with Disabilities Act (“ADA”) an employer may require antibody testing before permitting employees to re-enter the workplace.
Antibody testing differs from a COVID-19 virus test. A COVID-19 virus test detects the presence of active virus in the person. Antibody or “serologic testing” is designed to detect the presence of antibodies to the virus, and possible resulting immunity to the disease. The EEOC provided that employers using COVD-19 virus testing on their employees “should ensure that the tests are accurate and reliable” according to the guidance of the Centers for Disease Control and the Food and Drug Administration. Using tests that the CDC/FDA find safe and reliable, employers may make employment decisions with respect to returning an employee to the workplace based on a COVID-19 virus test. However, unlike the COVID-19 virus test, there is little scientific consensus as of this date that antibody or “serologic” testing provides either a reliable result or accurate information with respect to immune/non-immune status. Antibody tests are currently in use under Emergency Use Authorizations (EUA) while additional scientific data is collected about the COVID-19 immune response, but for now they are not considered reliable enough to use as a qualifying test for return to work status. The CDC makes it clear that “serologic testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established” and further states that “serologic test results should not be used to make decisions about returning persons to the workplace.”
The EEOC follows the CDC lead on this in the June 17th update to their guidance: “[i]n light of the CDC’s Interim Guidelines…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”. The EEOC concludes that for now, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. The EEOC’s stance on this issue remains dynamic; however, they clearly state in their guidance that they will continue to closely monitor the CDC’s recommendations and update the guidance as indicated.
What does this mean for employers? While it is tempting to look forward to a time when immunity can be established to assist employers in making return to work or accommodation decisions, we are not yet there either with respect to the science or the development of accurate and reliable tests. For now, the COVID-19 virus test, along with temperature monitoring and symptom inquiries are the approved tools in the employer toolkit—together with exercising CDC recommended policies for reducing virus spread such as face coverings, social distancing, and other mitigating measures. Requiring an employee to submit to an antibody/serology test or using the results of that test to make an employment-related decision is off the table unless or until further guidance.
You can read the most recent version of the EEOC Guidance (June 17, 2020 Updated Version EEOC “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) here.
You can also keep up with the most recent Centers for Disease Control Guidelines at CDC Interim Guidelines for COVID-19 Antibody Testing [https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html].
As I have said before–stay tuned for more from both the EEOC and the CDC as they continuously update their responses to this crisis.
If you have questions about labor and employment issues, contact your DSV attorney or Melanie M. Dunajeski at firstname.lastname@example.org.
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