The United States Equal Employment Opportunity Commission (EEOC) issued a statement this week regarding COVID-19 testing. The EEOC clarified that employers may not require employees to undergo antibody testing for the virus. This information was added to the Q&A section of the EEOC’s previous publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
It is important to note that only antibody testing has been prohibited under this guidance. Employers may still allow employees to undergo testing to see whether they currently have an active case of COVID-19. Antibody testing is considered to be a more invasive form of testing in that it also determines whether an individual has had COVID-19 in the past by determining whether that person has antibodies for the virus. Antibodies are naturally developed as a result to the immune system’s response to a virus and remain in the blood long after the individual still has the virus itself. In the case of COVID-19, antibodies may be present for two to three months in asymptomatic individuals, though typically longer in individuals who have experienced symptoms from the virus.
The EEOC may have been motivated, in part, by a difference in testing method. While testing for active virus may be performed with a nasal swab, antibody testing requires drawing a patient’s blood. Another key difference is the scope of the testing. Federal law considers a person’s health data to be protected. Employers are generally prohibited from engaging in practices which unnecessarily invade personal health data. Because antibody testing describes an individual’s past history with the virus, rather than their current viral status, the EEOC would consider the information received from that testing to be much more invasive than that from a test for active virus. The results would be seen as both less valuable in maintaining health in the workplace, and creating a greater risk for employment decisions which are related to health or disability status.
Failure to follow this guidance could result in significant concerns for employers. Engaging in prohibited testing would likely be seen to violate the Americans with Disabilities Act (ADA). The ADA does not generally allow employers to require employees to submit to medical examinations, except in certain specific situations. The EEOC had previously clarified that pandemic disease is an exception which would justify an employer requiring certain types of otherwise-prohibited medical exams. These exceptions include temperature checks, questions regarding personal health status as it pertains to COVID-19, and also tests which determine whether an individual currently has the virus. While an earlier publication by the EEOC had instructed employers not to rely upon antibody testing in deciding whether an employee may return to work, the agency has now stated that an employer may not require such testing at all.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
