By Robert G. Brody and Mark J. Taglia

Originally published in the Rockland County Business Journal on June 26, 2020
 

The Equal Employment Opportunity Commission (the “EEOC”) has clarified its current position on COVID-19 testing in the workplace (click here to review updated guidance), confirming it is unlawful for employers to test employees for COVID-19 antibodies as a condition to return to work.  But the Commission maintains that testing sick employees for COVID-19 (i.e. viral testing) is still permitted.

What does this mean for employers and why did the EEOC make such distinctions between the two seemingly related tests?

Previously the EEOC ruled an employer can require an employee to take a COVID-19 test before being allowed to return to work in order to determine if the employee has an active case of COVID-19 without running afoul of the Americans with Disabilities Act (the “ADA”).  In its most recent guidance the EEOC confirmed its prior position:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus (excerpt from latest EEOC Guidance).

Although the EEOC has authorized the active viral testing outlined above, it has come down much differently on permitting employers to test for the COVID-19 antibody as a condition for employees to return to work:

An antibody test constitutes a medical examination under the ADA. 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.

So why the divergent positions?

If an employer learns an employee has COVID-19, it can take action to protect others – it can refuse to return the employee to work.  But if the employer learns the employee HAD COVID-19, there is nothing the employer can do to improve safety.  Until science proves that having had COVID-19 means those employees can be treated differently than those who haven’t had the disease, anti-body testing will remain illegal.  The EEOC will continue to closely monitor the Centers for Disease Control and Prevention’s (the “CDC”) recommendations, and may update its position over time.

Viral testing can be an important part of the reopening plans for impacted businesses; however, it is important for employers to remember that a viral test is just a snapshot in time of your employee’s health.  An employee who tests negative in the morning, may be positive in the afternoon based upon new exposure to the virus.  Therefore, viral testing should only be a small part of a comprehensive plan to keep your employees safe.
 

END OF ORIGINAL ARTICLE