Can My Company Require Antibody Testing and Should It?June 10, 2020
With many states reopening their economies and businesses, employers are assessing what measures they can take to minimize the spread of the COVID-19 virus. In that vein, many businesses are asking about their ability and/or authority to require employees to take antibody tests as a condition for returning to the office.
Generally, employers have the authority to require employees to take these tests, as the Equal Employment Opportunity Commission (“EEOC”) has declared that the COVID-19 pandemic constitutes a “direct threat.” The classification as a direct threat allows employers to take measures that may otherwise be inappropriate. This includes requiring employees to submit to testing or provide a written doctor’s note with COVID-19-related information as a condition for returning to a physical workplace, i.e. the office.
By way of background, the Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a “direct threat” due to a medical condition.
The EEOC defines a “direct threat” as “a significant risk of substantial harm even with reasonable accommodation.” Moreover, if “an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.”
The EEOC regulations identify four factors to determine whether an employee poses a direct threat. However, in the context of the COVID-19 pandemic, employers may forgo this analysis, as the EEOC has deemed the virus to be a direct threat:
Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.
In light of the EEOC’s designation, employers have the ability to test employees, including antibody testing, as a return-to-work condition.
There is a separate issue, however, as to whether an employer should require antibody testing at this juncture. For instance, the media has reported that there are quality and safety issues with currently available antibody testing. An April 19, 2020, New York Times article cautioned on the reliability of existing COVID-19 antibody tests:
More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.
Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.…
Most of the tests offered are rapid tests that can be assessed in a doctor’s office — or, eventually, even at home — and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.
Rapid tests are by far the easiest to administer. But they are also the most unreliable — so much so that the World Health Organization recommends against their use.
The fact that the FDA has not vetted available antibody tests should warrant caution by employers, as they may be unsafe and unreliable. Indeed, the limitations of the existing tests may be counterproductive to an employer’s goal of ensuring employee and workplace safety. The New York Times has reported that “[m]ost tests now available mistakenly flag at least some people as having antibodies when they do not, which could foster a dangerously false belief that those people have immunity.”
Author: Mark K. Hsu (Partner, New York) Editor: S. Christopher Collier (Senior Partner, Atlanta)
Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.
 42 U.S.C. ch. 126 § 12101 et seq.
 U.S. Equal Employment Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
 Steve Eder, Apoorva Mandavilli, and Megan Twohey, Antibody Test, Seen as Key to Reopening Country, Does Not Yet Deliver, New York Times (April 19, 2020, update on May 7, 2020) https://www.nytimes.com/2020/04/19/us/coronavirus-antibody-tests.html