This latest update expands upon the existing topic of "disability-related inquiries and medical exams." However, an important insight for employers to grasp is how this update continues to highlight a connection between protections already afforded employees by the Americans with Disabilities Act (ADA) with the newer COVID-19 related protection measures such as reentering the workplace and employee workplace screening.
The following is what employers need to know about the latest 6/17/2020 update...
--> Disability-Related Inquiries and Medical Exams
An employer may not require antibody testing before permitting employees to re-enter the workplace.
This update clarifies that, under the ADA, antibody testing ("serologic" testing) constitutes a medical examination. This type of medical examination does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees.
Although testing for antibodies has been cited by the CDC as a helpful tool in understanding the prevalence of the COVID-19 virus in the general population and populations that may have some level of immunity from the virus, there is no identified advantage of antibody testing and ...
“additional data are needed before modifying public health recommendations based on antibody test results, including decisions on discontinuing physical distancing and using personal protective equipment.”
However, the EEOC distinguishes anti-body testing from viral testing, such as testing employees to determine if they have the COVID-19 virus, which is permitted under the ADA.
While employers may continue to test employees for the COVID-19 virus, (i.e.; take temperatures before allowing entry into the workplace), employers may not require employees to undergo antibody testing for COVID-19 or the business will be in direct violation of the ADA which will expose the company to fines and lawsuits.
Small-midsize employers, (employers with 15 or more employees), should continue to pay special attention to ensure that your business is in compliance with these guidelines. The EEOC recommends, and I agree, that employer compliance can be furthered by ensuring your managers and other executive staff are knowledgeable, trained and attentive so that they have the ability to recognize potential issues, as they arise, in order for the company to effectively address them and avoid liability risks.