Know the Law: Antibody Testing Not Allowed for Return to Work

Jennifer L. Parent
Director, Litigation Department
Published: Union Leader (re-published in NEHRA News on 7/23/2020)
July 5, 2020
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Q: As an extra precaution for my company’s re-opening, can I require our employees to take an antibody test before returning to work?

A: No, at this time, antibody testing is not considered job related and consistent with business necessity to be allowed under federal disability law.

While employers may require testing for COVID-19 before employees return to work, the Equal Employment Opportunity Commission (EEOC) has confirmed that employers are prohibited from requiring antibody testing before allowing employees back into the workplace.

The Americans with Disabilities Act (ADA) allows employers to inquire into an employee’s disability and conduct mandatory medical tests of employees if “job related and consistent with business necessity.” The EEOC earlier confirmed that employers could choose to conduct COVID-19 testing of employees before permitting them to enter the workplace to determine if any of them have the coronavirus. In doing so, the EEOC explained that the test for coronavirus meets this ADA standard because an employee with COVID-19 would pose a direct threat to the health of others in the workplace. Similarly, employers may take the temperatures of employees before entering the workplace and exclude employees positive for COVID-19 or with symptoms associated with COVID-19 from entering the workplace due to the direct threat to the health or safety of others.

In its new guidance issued on June 17, the EEOC explained that antibody testing is different and does not meet the ADA’s “job related and consistent with business necessity” standard for medical tests. Relying on the Interim Guidelines from the Center for Disease Control (CDC), the EEOC adopted the CDC’s position that antibody “testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established.” Specifically, the CDC notes that antibody testing should not be used to:

  • make decisions about returning persons to the workplace; or
  • make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.

In its new guidance, the EEOC explained that it will continue to monitor the recommendations of the CDC and update its guidance accordingly. At this time, requiring antibody testing of employees before allowing them to return to the workplace is not allowed under the ADA. Until it is found that antibody testing is more accurate, understood, and could prevent the spread of the coronavirus, this guidance is likely to remain unchanged. Employers may, however, continue to test for COVID-19 and inquire into medical symptoms associated with COVID-19. As the EEOC has advised, those employers who do require this testing should ensure that the tests used for detecting COVID-19 are accurate, reliable, and administered consistently and that the information obtained is maintained as a confidential health record.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association.  We invite your questions of business law.  Questions and ideas for future columns should be emailed to [email protected].  Please note – Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.