On June 17, the Equal Employment Opportunity Commission updated its COVID-19 guidance (scroll down to A.7) to state that employers cannot require employees to take COVID-19 antibody tests in order to return to work. Although employers are allowed to take employee temperatures and to test for current COVID-19 infection, the EEOC says that antibody testing violates the Americans with Disabilities Act.

After near shutdown of the U.S. economy in March and April, most employers have been bringing employees back to work. Some experts, eager to prevent further disruption, have suggested using serologic (antibody) testing to identify those who have had the virus and therefore may be eligible to safely return. Some companies have been marketing antibody testing programs to employers.

However, testing for immunity to COVID-19 could create discrimination issues. According to Professor Debbie Kaminer of Baruch College, policies favoring “immune” individuals are novel, and there are legal and policy implications to consider in balancing the right of an individual to work versus the preservation of public health.

Two provisions of the ADA are relevant to any medical testing of employees: (1) the ADA’s restrictions on “medical examinations,” and (2) “direct threat.”

Restrictions On “medical examinations”

General rule. The ADA restricts employers’ rights to require so-called “medical examinations” of workers. A “medical examination” within the meaning of the ADA is any inquiry that would tend to elicit information about a physical or mental disability. The extent of the employer’s right to obtain medical information varies depending on whether the individual is an applicant, an offeree, or a current employee.

Applicants. The ADA provides that employers may not ask applicants any questions that would tend to elicit information about a disability. This includes questions about days missed from the applicant’s prior job due to illness, questions about workers’ compensation claims, and questions about an applicant’s general health, all of which used to be common questions on employment applications.

Offerees. Once a conditional offer of employment is made, the employer can ask just about anything, provided that it treats all offerees in the same job category the same. Thus, it would be legal to require a post-offer physical or mental examination by a physician or other health care provider (including a COVID-19 antibody test), or to require the offeree to complete a detailed medical questionnaire. Of course, if the offeree discloses a medical condition, the employer could not simply withdraw the offer but would have to consider making reasonable accommodations as appropriate.

Current employees. After the employee starts work, the employer is again restricted with respect to its ability to obtain medical information from an employee. The employer can request medical information only if the request is “job related and consistent with business necessity,” or requested in connection with a voluntary wellness program. Generally, medical examinations or inquiries that are required of all employees do not satisfy the “job related” requirement and usually violate the ADA.

These provisions apply to all applicants, offerees, and employees, whether they have a disability or not.

Pandemic Exception

Despite the general prohibition on “blanket” medical examinations, in 2009 (in connection with the H1N1 pandemic) and again in March of this year (in connection with COVID-19), the EEOC has taken the position that temperature monitoring of employees, or inquiries related to symptoms of COVID-19, are “job related and consistent with business necessity.” Therefore, these actions do not violate the ADA, at least while the state of emergency associated with the pandemic lasts. The EEOC has also said that testing employees for current cases of coronavirus is “job related and consistent with business necessity.” All of these measures are seen as necessary to protect the health and safety of the employees and their co-workers.

On the other hand, the Centers for Disease Control and Prevention does not recommend COVID-19 antibody testing as a condition of coming to work, and this appears to be the basis for the EEOC’s current position that employer-mandated antibody tests are not “job related and consistent with business necessity.” According to Dr. Robert H. Schmerling of Harvard Health Publishing, antibody tests are more invasive than tests for active coronavirus. Moreover, antibody testing is not entirely reliable. And even if a reliable test were found, the presence or absence of COVID-19 antibodies does not precisely correlate with health or safety risks in the workplace. It is not clear that a person with antibodies could be immune from becoming infected again with COVID-19 (and, if reinfected, one could, in turn, spread it to co-workers). It is also not clear that a person without antibodies is at any elevated risk of contracting COVID-19 or passing it along to co-workers.

“Direct threat”

The ADA also provides that an employer does not violate the non-discrimination or reasonable accommodation provisions if it takes action against an employee whose medical condition is a “direct threat” to the health or safety of the employee or his or her co-workers. However, the “direct threat” standard is high: a direct threat exists only if there is “a significant risk of substantial harm . . . that cannot be eliminated or reduced by reasonable accommodation.” Notably, the statute requires that the assessment of “direct threat” be made on an individualized basis.

With an employee who has an active case of COVID-19, the risk is “significant” and the harm to the employee or others could be “substantial.” The only “reasonable accommodation” possible would be to remove the employee from the workplace (presumably on medical leave, with sick or disability pay, or PTO, if applicable) until the employee recovers and is safe to return to work.

But the same is not necessarily true with respect to COVID-19 antibodies. As discussed above, an employee with antibodies could possibly contract the illness again and could infect co-workers. An employee without antibodies might never contract the illness. Based on what we know now about COVID-19, the presence or absence of antibodies does not necessarily correlate with the health or safety of the affected employee or co-workers.

Thus, Professor Kaminer correctly argues that—with respect to antibodies—a case-by-case determination of “direct threat” would be necessary. She reasons, “just as the ADA requires an individualized assessment of whether an employee is a direct threat, any policy favoring those with COVID-19 immunity should focus on the specifics of the profession and workplace in question.”

Where We Stand

The CDC’s guidance is expected to evolve, and the EEOC has left the door open to change its position on antibody testing based on forthcoming CDC guidance. But for the time being, (1) it is not a violation of the ADA for employers to require temperature monitoring, to ask employees about COVID-19 symptoms, or to require employees to report any symptoms they may be experiencing; (2) it is not a violation of the ADA for employers to require employees to be tested for active cases of coronavirus; (3) but it is a violation of the ADA for employers to require employees to be tested for COVID-19 antibodies.

June 30, 2020/by Labor

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