Cannot Be Used to Determine if Employees Can Return to Work
On June 17, 2020 the EEOC (Equal Employment Opportunity Commission) released information regarding an employer requiring antibody testing before allowing employees to re-enter the workplace. The EEOC said that “an antibody test constitutes a medical exam under the ADA (Americans with Disabilities Act) and explained that in light of the current CDC Interim Guidelines, “the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace.”
It is important to note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., viral testing). Viral testing is allowed under the ADA. The EEOC stated that it will “closely monitor” CDC recommendations and may adjust its guidance accordingly.
With the current COVID-19 pandemic situation around the country, there have been many concessions made regarding HIPAA, ADA, EEOC, OSHA, etc. That said, these concessions are in no way intended to give employers the freedom to infringe on employee rights.
Additionally, there may be caveats related to state and local health department mandates and whether a center has a union representation or not. Bottom line, although there has been some flexibility given during the Pandemic, there are hard and fast rules regarding employee rights. HealthCap recommends that prior to making any decisions regarding employee rights you check with your employment attorney for guidance.