EEOC Guidance on COVID-19 Antibody Testing
The Equal Employment Opportunity Commission (EEOC) issued updated guidance yesterday titled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws yesterday. The updated guidance addresses employers who wish to require employees to have a COVID-19 antibody tests prior to re-entering the workplace. The guidance consists of seventeen pages of Frequently Asked Questions (FAQ) to assist employers as they navigate this truly unprecedented time for employers and employees during a pandemic.
The updated guidance alerts employers that they may not require employees to undergo COVID-19 antibody testing as this would constitute an unlawful “medical examination” under the Americans with Disabilities Act (ADA). Under the ADA, employers are limited in the medical related inquiries that they can make of employees. Medical related inquiries can be considered a Medical Examination and are strictly regulated under the ADA and the Rehabilitation Act. Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 29 CFR § 1630.14. The reason certain medical examinations are prohibited is due to the likelihood that the examination may identify medical conditions that constitute a protected disability under the ADA.
The EEOC has issued previous guidance that permits COVID-19 viral testing in the employment setting. The distinction between the antibody test and the viral test is the presence of active virus and the obligation of employers to provide a workplace that is free from known hazards. The viral tests are generally administered prior to the employee entering the workplace and are considered “job related and consistent with business necessity.” Additionally, employers may take the body temperatures of employees as they enter the workplace and at intervals during their shift. However, employers must be aware that some individuals with COVID-19 are asymptomatic and may not have an elevated body temperature. Additionally, the records related to taking employee temperatures are confidential and should be maintained with other employee medical records.
The best practice for employers, have a documented plan. Ensure that all employees understand their role in controlling the spread of the virus.
Be sure employees:
- Monitor their own temperature and COVID-19 symptoms.
- Wear a face covering and practice social distancing, even in the workplace to the extent it is possible.
- Frequently wash their hands
- Stay home if they are sick or display symptoms;
- Let their employer know if they have a family member or significant other who has COVID-19 or is displaying symptoms.
- Regularly clean and disinfect any equipment they utilize, before, during, and at the conclusion of their workday.
- Be sure to provide employees with COVID-19 education.
- Place signage in the workplace to remind employees and visitors to wear facial coverings and maintain social distancing.
- Provide disposable face coverings for anyone entering the building who does not have a mask.
- Maintain a log of all individuals, employees or visitors, who enter the building. The log should include their name, organization, and a method of contact.
- Provide all visitors with contact information should they become ill or exhibit symptoms in the 14 days following a visit to your workplace.
- Limit meetings or gatherings of employees.
- If administering employee temperatures
- Communicate the process to employees
- Establish what temperature will be considered too high for working (CDC considers a fever to be at least 100.4 F)
- Ensure all individuals are wearing face masks and social distancing, to the extent possible
- If employer requires temperature taking, be sure that the time employees spend associated with this procedure is tracked and compensated.
- As stated previously, maintain records confidentially
If you have questions or your organization needs assistance in determining if you have the appropriate safeguards in place, be sure to reach out to the AAA for help.