The EEOC Weighs in on COVID-19 Antibody Testing and Other Return to Work Considerations

Miller & Martin PLLC Alerts | June 22, 2020

Antibody Tests Cannot be Required

As America awakens and makes a push to return to the workplace, the news cycle remains awash with the impact of testing as a key ingredient to assure worker safety. Employers should be aware that, while testing employees for the COVID-19 virus is permissible, not all test are created equal. The EEOC has recently updated its Q&As intended to assist employers by providing guidance on the bounds of acceptable protocols under the limits of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. While testing is a key ingredient in the effort to control and track the spread of the virus, the EEOC re-affirms that diagnostic tests intended to see whether an individual is infected with COVID-19 are viewed quite differently from somewhat more controversial antibody testing.

The EEOC asserts that antibody tests, which are intended to gauge whether an individual was previously infected with COVID-19, constitute a “medical exam” under the ADA, and at this time, these tests do not meet the ADA’s “job related and consistent with business necessity” standard. Significantly, the EEOC distinguishes an antibody test from a diagnostic test to determine if someone has an active case of COVID-19, such as a viral test, which remains permissible under the ADA.  This guidance from the EEOC is consistent with the Center for Disease Control’s (“CDC”) recent position in its Interim Guidelines stating that antibody test results “should not be used to make decisions about returning individuals to the workplace.” As antibody testing procedures become better developed, the EEOC’s current position may change should the CDC’s recommendations change.

Don’t Forget to Accommodate

The return of large numbers of employees to workspaces will bring with it numerous requests for accommodation. Establish a person (or persons) who will field such requests and conduct a proper analysis under the ADA and the Rehabilitation Act. This process should consider those conditions identified by the CDC as posing a higher risk profile for serious illness. Employees should be notified that requests for accommodation will be handled on an individualized basis and employers need to be mindful of the obligation to engage in the interactive process with all requests.

There are Limits on the Duty to Accommodate

The duty to accommodate extends only to the employee who has an actual physical or mental impairment. This obligation does not extend or cover situations where an employee’s concerns are related to a family member who may present high risk factors. The ADA does not require an accommodation (such as continuing remote work options) simply because an employee has a family member with higher risk factors.

Blanket Exclusions are a Bad Idea

The news cycle has added many terms that are now part of our everyday discussion. Terms like “essential worker” and “high risk” are now common descriptors. As employers evaluate who can and should return to work, remember that it is improper to impose blanket restrictions on broad categories of individuals based on perceptions. In particular, across-the-board exclusions of workers over the age of 40 or pregnant workers based on COVID-19 risk susceptibility is legally prohibited. That said, employers are free to offer accommodations to employees based on these risk factors. The difference here is subtle, although meaningful. The employer may not pre-suppose and mandate that employees in these categories are not safe to return, however, an employer may (or may not) lawfully provide an accommodation on these grounds if requested to do so. One caveat: be careful of laws in some states that consider pregnancy to constitute a disability.

A Word About Masks

The science relating to COVID-19 continues to advance. At present, the usage of masks in public areas, along with frequent hand-washing, continues to be viewed as the best defense against disease transmission. As we previously reported, OSHA has promulgated FAQ’s where the wearing of face coverings at work is encouraged. While cloth face coverings are not considered PPE (Personal Protective Equipment), their usage in the workplace is also endorsed by the CDC. Even while wearing face coverings, social distancing is equally encouraged.

We Can Help

For questions on the impact of the COVID-19 pandemic and your workplace, feel free to contact Christopher Parker, Neil Wilcove, Larry Cash or Stacie Caraway to discuss your specific questions.