The Predictable Unpredictability of COVID-19 Antibody Testing

Can I test my employees for COVID-19?

Over the course of the last few months, it feels like the answer to that question has been Yes, No, and It Depends. And maybe all three at the same time.

In fact, if you look at my post from April 2020, you’ll see the differences in the guidance between then and, as I’ll explain below, now.

Quite simple, with more science, we’re starting to get greater clarity on what testing is permissible for employees.

For antibody testing, the CDC recently updated its interim guidance to state that antibody test results “should not be used to make decisions about returning persons to the workplace.”

Antibody testing, as it turns out, is not yet the panacea yet that many were hoping for.

As a result, on June 17, 2020, the EEOC also updated its guidance on whether antibody testing could be used by employers as a condition of permitting employees to return to the workplace.

The short answer is “No”, it cannot be used at this time.  In doing so, the EEOC said:

An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelinesthat 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. 

And what about testing for the virus itself? On that point, the EEOC said its previous guidance permitting such tests remains applicable.

Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC noted that it “will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.”

Thus, while antibody testing is not permissible now, this could change again in the future.

Employers who have an employee with suspected COVID-19 symptoms should feel confident now that requiring an employee to get a virus test is permissible. At the same time, employers should not require antibody testing.  Employers can still ask for a return to work note from a doctor too.

As we continue to learn more about COVID-19, my statement from April holds true: Employers should continue to check back on the guidance in the upcoming months.

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