Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back

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

Written by: Jennifer L. Parent

Published in the Union Leader (7/5/2020) and NEHRA News (7/23/2020)

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.

 

Jennifer can be reached at [email protected].

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.

Integrity and trust

At McLane Middleton we establish and maintain long-standing relationships with our clients to help us better achieve their unique goals over time. This approach to building trust requires that our esteemed lawyers and professionals use their broad, in-depth knowledge and work together with integrity to ascertain sound resolutions to legal matters for their clients.

Strength in numbers

McLane Middleton is made up of more than 105 attorneys who represent a broad range of clients throughout the region, delivering customized solutions. As a firm we are recognized as having the highest legal ability rating. The firm is rated Preeminent by Martindale Hubbell and is recognized as one of the nation's leading law firms in Chambers USA. Our attorneys are distinguished leaders in their respective practice areas.

Meet Our People

Commitment and collaboration

McLane Middleton's versatile group of attorneys and paralegals become trusted authorities on each case through collaboration. We work with our clients to learn their individual needs first and foremost and, together, we develop comprehensive solutions to their specific legal matters. This approach helps us exceed our clients' expectations efficiently and effectively, client by client, case by case.

Practice Areas

A history of excellence

McLane Middleton was established in 1919 in New Hampshire, and has five offices across two states. However, deep historical roots don't allow you to become innate. Our firm is organized, technological, and knowledgeable. Our history means we are recognized. But our reputation is built on the highest quality of service and experience in very specific areas of law.

The Firm

Intelligence paired with action

Our team continuously seeks opportunities to enhance their professional development and put key learnings to action. The pursuit of further insight guides us to volunteer service opportunities, speaking engagements, and teaching roles. Our lawyers are sought after thought leaders across their industries, and recipients of leadership awards throughout the region.