The current pandemic has compelled many employers to expand their screening processes in order to avoid an outbreak in their workplaces. However, employers, even with good intentions, might not realize that they could be be infringing on the Americans with Disabilities Act (ADA) if they are requiring all employees to take an antibody test before returning to work.
The ADA specifically prohibits employers from making medical examinations mandatory for workers if they are not “job related and consistent with business necessity.”
Thus, because the antibody tests has been categorized as a medical examinations that is not “job related and consistent with business necessity” the Equal Employment Opportunity Commission (EEOC) has ultimately decided that it cannot be used as a safe screening process for employees to return back to work. The EEOC’s decision about the antibody test comes in light of the Center for Disease Control and Prevention’s (CDC) own guidelines, which state that an antibody test result “should not be used to make a decision about returning persons to the workplace.”
David Fram, the National Employment Law Institute’s director in Golden, Colorado agrees with the EEOC’s decision stating, “It would be a very rough argument that [antibody testing] would be job related and consistent with business necessity. To be job related, there would have to be problems with performance or concern about direct threat” to health.
The antibody test, is different from the COVID-19 detection test, as the antibody test will only determine if a person has once had COVID-19. Yet, these tests have received criticisms for producing many false positives as well as for instituting a false sense of immunity, as scientists cannot guarantee that getting COVID-19 once means you will not get it again.
Despite the uncertainty about the accuracy of antibody tests, one problem experts foresee is that if an employee volunteers in admitting that they once had COVID-19 and prove it with the antibody test then it might make that certain employee more favorable to return to work over those who have not. Fram says that in this situation “it’s discriminating in favor of someone who has a record of disability.” Yet, Fram adds that the employer still cannot pressure an employee to admit if they have once had COVID-19 or not.
As of now, if the CDC does not find the antibody test as an effective means in preventing the spread of COVID-19, then the EEOC will not allow for it to be used as an approved screening process for workers to return to work.
Currently, the EEOC has approved two screening processes for employees to use on their workers in their updated guidelines published online. The EEOC has approved for employees to be screened by taking their temperature and by administering COVID-19 tests.
If someone’s temperature is being taken it is still important to give confidentiality to the workers by making sure that the temperature is not being taken in front of others. Moreover, if a worker does have a temperature it should not be announced. Employers are also allowed to ask workers to get tested for COVID-19 in a confidential matter, if that worker is exhibiting symptoms related to COVID-19.
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