COVID-19 Antibody Testing of Employees
According to recent regulatory guidance issued by the Equal Employment Opportunity Commission (EEOC), employers are prohibited from mandating that employees take a COVID-19 antibody test prior to returning to work. The EEOC guidance states that mandating such testing would violate the Americans with Disabilities Act (ADA). The EEOC regulatory guidance pertains to antibody or serology tests to determine whether a person was infected with COVID-19 (regardless of whether they are asymptomatic) and have developed antibodies to the virus.
This EEOC regulatory guidance coincides with a recent policy directive issued by the Center for Disease Control and Prevention (CDC) which stated that antibody testing should not be used to determine if an individual is immune to COVID-19 and/or to make a decision to allow workers to return to their worksite.
In issuing the regulatory guidance, the EEOC stated that requiring employees to submit to a COVID-19 antibody test prior to returning to the workplace would violate the ADA since antibody testing under the ADA constitutes a medical examination. Furthermore, the EEOC stated that such mandated antibody testing would not be exempt under the ADA’s “job related and consistent with business necessity” exemption which allows medical exams or inquiries of current employees.
This recent regulatory guidance overturns a prior guidance issued by the EEOC in which it had stated that employers were permitted to administer COVID-19 viral tests to employees prior to allowing them to return to work in order to determine if the employees were actively infected with the virus.
In overturning its prior regulatory guidance, the EEOC stated that antibody and viral tests are separate and distinct types of tests and that viral tests are permissible while antibody or serologic tests are prohibited under the ADA because the CDC has concluded that antibody testing has certain limitations, including the potential for false positives and a lack of data regarding whether the presence of antibodies validates the immunity of a person to COVID-19 for a period of time.
Employers are advised to continue to monitor guidance on this topic, as the EEOC has stated it may adjust its regulatory guidance on this issue as it continues to monitor recommendations issued by the CDC.