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New COVID-19 Antibody Testing Guidance from the EEOC

Jun 26, 2020 Decorative image

COVID-19 testing has been a popular topic among employers as the nation continues its gradual reopening of workplaces following coronavirus-related shutdowns. In addition to prevention strategies such as the use of face masks, mandating physical distancing and encouraging handwashing, many employers are also contemplating employee testing options to help keep their employees and customers safe.

Is Testing Allowed?

Although the Equal Employment Opportunity Commission (EEOC) initially stated that employers could require employees to adhere to non-invasive temperature testing without violating the Americans with Disabilities Act (ADA), the guidance lacked clarity about antibody testing.

Therefore, on June 17, 2020, the EEOC updated its COVID-19 technical assistance questions and answers to provide additional guidance for employers on the use of antibody testing.Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19. A viral test reveals whether a person currently has an infection, whereas an antibody test assesses whether a person previously had an infection.

The guidance now clarifies that employers cannot require antibody testing before allowing employees to return to work, on the basis that it violates the ADA. Based on the Centers for Disease Control and Prevention’s (CDC) guidelines, which state that antibody test results “should not be used to determine if someone can return to work,” the EEOC has determined that antibody testing (which is considered a medical examination under the ADA) does not meet the “job-related and consistent with business necessity” standard to qualify as a medical examination for employees.

However, an employer can still require non-invasive temperature testing and viral testing to determine whether an employee has an active case of COVID-19. The EEOC approved the virus tests because they have been shown to be effective in determining if employees entering the workplace are currently infected with COVID-19, and that an individual with the virus will pose a direct threat to others.

In short, temperature and viral testing for the purposes of COVID-19 are permissible,
but antibody testing is not permissible at this time.

It’s important to note that scientists are still not sure whether having antibodies provides complete or partial immunity to COVID-19, nor can they define the duration of the immunity. It also is still unknown whether a person with the antibodies can pass the virus on to someone else. Because of this uncertainty, the EEOC has stated that their guidance may again change over time based on updated CDC guidance, especially as the understanding of the coronavirus continues to evolve.

Testing Guidance and Impact on Employer Return-to-Work Strategy

In addition to focusing on preventive workplace strategies and employee self-assessments, employers may consider testing for active cases of COVID-19, using CDC guidance on the appropriate use of testing. For employers interested in exploring testing options, there are companies that offer temperature testing and viral testing services. Even so, there is not an easy-button testing solution; temperature checks may miss asymptomatic individuals infected with COVID-19, and viral testing recognizes infection status for only that point in time. Although employee testing and screening can be helpful, keep in mind that testing is only part of a comprehensive return-to-work strategy.

Additionally, employers opting to use viral testing as part of their return-to-work strategy should note that the cost of such testing need not be reimbursed by their group health plan. The Department of Labor (DOL) clarified this point in their FAQ, which was released on June 23, 2020. According to the DOL, while health plans are required to cover COVID-19 testing for diagnostic purposes, they are not required to cover testing conducted to screen for general workplace health and safety (such as employee return-to-work programs).

We recognize that this information is complex and changes frequently. We are here to help. Please contact your Hylant representative if you have questions.

The above information does not constitute advice. Always contact your employee benefits broker or trusted adviser for insurance-related questions.

Author Maddison Bezdicek, Health Strategies Practice Leader, Hylant Employee Benefits Practice