EEOC Says Employers Cannot Require COVID Antibody Testing
On June 17, 2020, the EEOC determined a difference between testing for current COVID infection and testing for antibodies. Though testing for current infection is acceptable and making decisions on allowing employees to work based on their current infection status is permissible, testing for antibodies and requiring that as a criteria for returning to work is not permissible. The approach considers testing for current infection as "job related and consistent with business necessity" while testing for antibodies is not.
Antibody tests (also called serology tests) are intended to determine whether a person was ever infected with COVID-19. It is unknown at this time whether antibodies confer immunity and, if so, for how long.The EEOC links its guidance to the guidance issued by the Centers for Disease Control and Prevention (CDC). The CDC’s guidance states:"Serologic testing should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established.”
As the science evolves, this position could change. Employers can still choose to offer antibody testing, but an employee’s decision to take the test must be knowing and voluntary and in most states, the employer is responsible for paying for the test.
Additionally, an employer cannot mandate that an employee reveal the results of the test to her employer. Even if the employer is voluntarily provided with the test results, the information must be treated in a confidential manner because it is a medical record.
The CDC guidance about COVID-19 is continuously evolving as is the EEOC's guidance on the Americans with Disabilities Act (ADA).