EEOC Says Employers Can't Require COVID-19 Antibody Tests

By Vin Gurrieri
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Law360 (June 17, 2020, 4:48 PM EDT) -- Businesses can't make workers take tests that detect COVID-19 antibodies without violating the Americans with Disabilities Act, the EEOC said in new guidance Wednesday, answering a question left open when the commission recently gave businesses the green light to test employees for the virus itself.

Nurse Catherine Gaughan draws blood from Ahmad Bazzi for antibody testing in Dearborn, Michigan, on June 12. The EEOC said employers can't mandate such testing for returning workers, pointing to recent guidance by the CDC. (AP Photo/Paul Sancya)

The U.S. Equal Employment Opportunity Commission's guidance is its latest addition to a technical assistance document it has periodically updated in recent months that answers various questions surrounding employers' response to the novel coronavirus pandemic and their obligations under federal anti-discrimination laws.

The latest entry deals with antibody or serology tests, which determine whether a person was ever infected with COVID-19 — even if they were asymptomatic — and built up antibodies to the disease.

Pointing to recent guidance by the Centers for Disease Control & Prevention that says in part that antibody tests shouldn't be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back on the job, the EEOC said that employers for now can't mandate those tests before allowing people back to work.

"An antibody test constitutes a medical examination under the ADA," the EEOC said. "In light of CDC's interim guidelines that antibody test results 'should not be used to make decisions about returning persons to the workplace,' 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."

"Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA," the EEOC added.

The EEOC noted that it will "closely monitor" any recommendations by the CDC and may adjust its guidance accordingly if the CDC changes its stance.

The commission's latest guidance comes about two months after it told employers that they are allowed to administer viral tests that determine if people are actively infected with COVID-19 before letting workers back on a job site. But some employment experts noted that the guidance on COVID-19 tests was silent about the legality of businesses using antibody tests and that the agency would likely have to tackle that topic in the future.

In Wednesday's guidance, the EEOC was careful to note that antibody tests and viral tests are two different things, and that the latter is still permissible under the ADA, as the commission said in its April guidance, even though the former is not.

The CDC, as part of its guidance, said that serologic tests have some limitations, including the potential for false positives and a lack of data about whether the presence of antibodies means a person is immune to COVID-19 for some period of time.

"Serologic testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established," the CDC said in its guidance.

--Editing by Alyssa Miller.

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