Anti-Antibody Testing: Updated Guidance from the EEOC on COVID-19 Testing

Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

June 19, 2020

In April 2020 the Equal Employment Opportunity Commission (EEOC) provided guidance on the types of employee screening employers can perform to prevent the spread of COVID-19 in the workplace. In the April 2020 release the EEOC stated employers may administer a COVID-19 test to determine if an employee has the virus under certain circumstances and perform temperature checks. See our summary here.

In a June 17, 2020 update, the EEOC addressed antibody testing. The purpose of an antibody test is to help determine whether the individual tested was ever infected—even if that person never showed symptoms.

Unlike tests for the COVID-19 virus and fever, the EEOC states an employer may not require antibody testing before permitting employees to return to work. The decision is based on the Centers for Disease Control & Prevention’s (CDC’s) Interim Guidelines for COVID-19 Antibody Testing which advises:

“Recurrence of COVID-19 illness appears to be very uncommon, suggesting that the presence of antibodies could confer at least short-term immunity to infection with SARS-CoV-2…However, definitive data are lacking, and it remains uncertain whether individuals with antibodies…are protected against reinfection with SARS-CoV-2, and if so, what concentration of antibodies is needed to confer protection.”   

Based on this, and other findings in the CDC’s Interim Guidelines, the CDC states antibody test results “should not be used to make decisions about returning persons to the workplace.” While antibody testing should not be used by employers at this time, there are other screening and protective measures businesses are required to implement when reopening, as discussed in our article on this topic here.

Nicholas Kanter is a Shareholder in our Employment and Business Litigation Practice Groups.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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