The Novel Coronavirus, the speed by which science continues to discover new aspects of the disease and the response of the United States government to these developments has tested manufacturers.  One aspect of this testing concerns, well, testing.

The Americans with Disabilities Act has long banned manufacturers from requiring medical evaluations unless both “job-related” and consistent with “business necessity,” high standards.  When the pandemic hit the United States and the President declared a national emergency, the EEOC had to reconsider its position.  As part of the effort to “stop the spread” of the Coronavirus, in March 2020, the EEOC announced that manufacturers could require employees to submit to body temperature monitoring, a “medical evaluation” justified by the crisis.  See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (Number A.3.) (March 17, 2020).  As COVID-19 testing (testing to detect the presence of the virus) became more widely available, the EEOC updated its guidance again to permit manufacturers to require employees to submit to a COVID-19 test as a condition of permitting the employee to work.  See Id. (Number A.6.) (April 23, 2020).  Manufacturers were warned of their obligation to make sure the administered test was both accurate and reliable, and that the test could only detect the presence of the disease as of the date of the test itself.

Many viewed the EEOC’s position as signaling a willingness to allow broad employee testing when it became available to help manufacturers continue operating.

But the use of antibody testing proved to present more complicated issues.  Antibodies, many believed, were a sign that employees already had the disease, overcame it and were likely immune to reinfection for a period.  But on May 23, 2020, the CDC issued Interim Guidelines which cautioned that antibody testing could present many “false positive” results and warned, “test results do not indicate with certainty the presence or absence of current or previous infection with SARS-CoV-2.”  (The CDC subsequently issued additional guidance further explaining issues associated with “false positive” results on June 25, 2020, guidance which is available here.)

This led the EEOC, on June 17, 2020, to update its guidance holding that, in contrast to COVID-19 tests and temperature screening, manufacturers could not require antibody testing as a condition of employment.  See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (Number A.7.) (June 17, 2020).

Manufacturers seeking to protect their workers may wish to carefully monitor the EEOC Guidance in this area and confer with qualified legal counsel.  Rapid developments in testing will challenge us all in the months to come.