EEOC Updated Guidance on COVID-19 Antibody Testing

June 24, 2020

Volume X, Number 176

June 23, 2020

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June 22, 2020

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EEOC Issues Updated Guidance on COVID-19 Antibody Testing

On June 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance (see A.7.) stating employers cannot require workers to undergo Coronavirus Disease 2019 (COVID-19) antibody testing (as distinguished from testing for the COVID-19 virus itself). Increased COVID-19 antibody (or “serology”) testing has been cited as a helpful tool because it aids in understanding the prevalence of the virus in the general population. It can also produce useful information about populations that may have some level of immunity from the virus. But the EEOC has now made clear that employers may not mandate such testing, as doing so violates the Americans with Disabilities Act (ADA). 

The EEOC issued its new antibody test guidance as an update to an EEOC-maintained technical assistance document designed to answer employer questions during the COVID-19 public health emergency. In announcing its new guidance, the EEOC cited Centers for Disease Control and Prevention (CDC) guidelines, which state that the results of antibody testing “should not be used to make decisions about returning persons to the workplace.” The CDC made this decision based on a current lack of data on COVID-19 antibodies, including the degree of immunity antibodies may provide. Additionally, some antibody tests may produce false positives or false negatives, and some individuals who have been infected with COVID-19 may not develop detectable antibodies, or antibodies may decrease over time to undetectable levels, further reducing the reliability of these tests, at least as indicators of risk for future infection.
 
The EEOC’s latest guidance comes two months after it issued guidance expressly izing employers to test employees for the COVID-19 virus as a precondition to return to work. In that instance, the EEOC determined mandatory testing did not run afoul of the ADA because the ADA already requires any mandatory medical test of employees be reliable, “job related and consistent with business necessity.” In applying this standard to the COVID-19 public health emergency, the EEOC concluded employers may take steps to determine if employees entering the workplace are infected with COVID-19, given the direct risk infection poses to other workers. 

In sum, while employers are ized to test employees for the COVID-19 virus, employers may not, as of the date of this GT Alert, require employees to undergo testing for COVID-19 antibodies. 

The EEOC has stated it will continue to monitor CDC recommendations on COVID-19 antibody testing and may update its guidance as needed to respond to changes from the CDC.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 174

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Naomi G. Beer Labor & Employment Litigation Attorney Greenberg Traurig Law Firm Denver
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Naomi G. Beer is Co-Chair of the firm's Global Labor & Employment Practice and Co-Chair of the Labor & Employment Practice’s Collective & Systemic Employment Litigation group. She is an experienced litigator who focuses her practice on managing complex engagements. Naomi has over 25 years of experience advising clients on all aspects of complex, class action and multi-district litigation and has served as national counsel for clients faced with related proceedings in multiple jurisdictions and forums. Naomi also frequently counsels clients faced with complex...

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James Boudreau, Greenberg Traurig Law Firm, Philadelphia, Labor and Employment Litigation Attorney
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James N. Boudreau is a lawyer at the Global Labor & Employment Practice and the Labor & Employment Practice’s Collective & Systemic Employment Litigation group. He represents management in class action and complex employment litigation and devotes the majority of his practice to managing teams of attorneys and paralegals in nationwide class and collective actions from receipt of the complaint through discovery, class certification and trial. He is considered a thought leader in class-based employment litigation and has been listed by Human Resource Executive magazine as one of “The Nation’s Most Powerful Employment Lawyers – Top 100," each year since 2013.  He was also selected as one of five Law360 "MVP - Labor and Employment," for 2012, for his cutting-edge work representing employers in class and collective actions.

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Nancy Taylor, Greenberg Traurig Law Firm, Washington DC, Health Care Law Attorney
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Nancy Taylor is Co-Chair of the Health Care & FDA Practice and has advised clients on health and FDA related matters for more than two decades. She has broad experience in areas relating to the Affordable Care Act provisions, CMS reimbursement and policy issues relating to providers and plans, and she has done a significant amount of FDA regulatory work. Prior to joining Greenberg Traurig, Nancy served 10 years as Health Policy Director for the Senate Committee on Labor and Human Resources and worked on a number of significant health and FDA laws, including NLEA,...

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Tess Meyer Healthcare Lawyer Greenberg Traurig Law Firm
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Tess Meyer advises payers, providers, biotech and pharmaceutical companies, large employers, and other health care stakeholders on health care regulatory compliance issues and policy objectives. She conducts complex regulatory and compliance assessments, including matters related to Affordable Care Act compliance, Medicaid and Medicare issues, and market conduct requirements.

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