On June 17, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued new guidelines for employers that prohibit COVID-19 antibody testing under the Americans with Disabilities Act (“ADA”). Technical support from EEOC COVID-19 A.7. Although the ADA primarily protects disabled people from discrimination in the workplace and in public, some parts of the law apply in general. Such a section prohibits employers from forcing workers to undergo medical examinations that are not “job-related and in line with business needs”. 29 CFR § 1630.14 (c).
The Commission has already said that employers can lawfully test workers for COVID-19 infection. However, the prohibited antibody tests (also known as "serological tests") differ from tests that identify the active virus. Antibodies are generated as part of the immune response to a virus and remain in the body even after complete recovery from infection. Antibody tests that require blood tests are also more invasive than tests for the active virus, which only require breath tests such as a nasal swab.
Because antibodies are only detectable a few weeks after symptoms appear, the Centers for Disease Control and Prevention (“CDC”) has recommended that antibody tests “not be used to make decisions about how people return to work”. Guidelines for CDC antibody testing. The CDC has also said that the presence of antibodies "is likely to indicate at least some level of immunity", but it is not safe to assume that "individuals with truly positive antibody test results will be protected from future infections". Guidelines for CDC antibody testing.
Referring to the recommendations of the CDC, the Commission notes that the antibody test does not meet the ADA standard “work-related and in line with business need” for medical examinations or inquiries for current employees. First and foremost, antibody testing is of little value to employers to determine whether workers are a real threat to the workplace. Second, COVID-19 antibody tests are more invasive to employees' bodies and not always reliable and consistent. Given these facts, the EEOC has committed to a policy that allows employers to test a worker for infection, but may not test a worker to determine if they have been infected in the past. This is the latest step on the path taken by the Commission during the pandemic between mandatory business requirements to maintain safe jobs and the protection of employee privacy under federal and state laws.
As the COVID 19 guidelines evolve and plans reopen, consider how employee privacy rights are weighed against imperative business requirements. Continue to monitor federal, state, and local laws regarding medical checkups and employer obligations when companies test positive for COVID-19.
Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Stay informed about the legal implications of Sheppard Mullin
Coronavirus Insights Portal, which now summarizes the company's various COVID-19 blog posts on a wide range of topics.
As you know, things change quickly and there are no clear authorities or rules for clear lines. This is not a clear statement of the law, but our best interpretation of where things are at the moment. This article does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID 19 pandemic, including, without limitation, the potential liability in the event of an employee becoming ill, Pay for family vacation or illness requirements and other issues.
* Garrett Stallins is an intern in work and employment practice.