KMK Law Management Rights Blog

As employers bring employees back into the workplace, many are considering various forms of testing as a means to promote employee safety. While some forms of testing are fairly straightforward, such as taking employees’ temperatures, laboratory testing for COVID-19 is not as simple. 

The EEOC has previously authorized employers to take employees temperatures during the pandemic but more recently issued guidance on COVID-19 testing, stating:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

However, the EEOC went on to note that “employers should ensure that the tests are accurate and reliable.” The guidance goes on to state:

[E]mployers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

There are two points in the above guidance that employers need to carefully consider. First, the basis for the EEOC’s guidance is the idea that an employee with the virus poses a direct threat to others. Second, the employer has an obligation to ensure that tests are accurate and reliable. With that in mind, let’s consider the available tests.

According to the FDA, the term "diagnostic test" is generally used to refer to molecular or antigen tests, both of which can be used to diagnose infection with COVID-19. Molecular tests are highly accurate. Antigen tests detect the presence of viral proteins that are part of the COVID-19 virus. Antigen tests are not as sensitive as molecular tests and there is a higher chance of false negatives, so a negative result does not rule out infection. By contrast, "serological" or "antibody" tests detect antibodies to the COVID-19 virus. Antibodies are part of the body's immune response to exposure and antibody testing only establishes a past infection. An individual who has never had the virus would test negative as would a recently infected, contagious individual who has not yet developed antibodies.

Based on the foregoing, employers can rely on molecular tests and likely may rely on antigen tests, although the argument is not quite as strong; both test for the presence of the actual virus. The EEOC has cautioned that even employers using tests should also observe infection control practices (such as social distancing, regular hand washing, and other measures) in the workplace to prevent transmission of COVID-19. 

By contrast, antibody tests pose two problems.  First, since they do not test for active infections, they do not arguably meet the direct threat standard stated in the EEOC guidance. An employee who formerly had COVID-19 is not necessarily a threat to infect other employees. Second, the antibody tests are not recognized as an accurate test for COVID-19 infection. In recent guidance, the FDA stated the following regarding antibody testing:

Because the antibodies are part of the body's immune response to exposure and not the virus itself, such testing cannot be used for diagnosis of infection. Based on the underlying scientific principles of antibody tests, we do not expect that an antibody test can be shown to definitively diagnose or exclude COVID-19 infection. 

The practical problem is that antibody testing is more widely available and often less expensive than other testing. However, at this point, employers cannot rely on such tests falling within EEOC guidance on acceptable testing if challenged. Like almost everything related to COVID-19 and employment law, this situation is developing and the EEOC has not yet issued specific guidance on antibody testing. Until it does, employers should consider carefully whether they will offer employees antibody testing and under what circumstances.

Please contact any member of our Labor & Employment Group, or the KMK Law Coronavirus (COVID-19) Response Team for further assistance.