Mandatory Tests for Antibodies Not Permissible According to EEOC

The Equal Employment Opportunity Commission (EEOC) has clarified a rule with respect to employers testing their employees for COVID infection. While it is permissible for an employer to test if an employee is currently showing signs of coronavirus infection, it is not permissible to test if they have COVID antibodies. This is an important distinction to make as people begin to return to work and the coronavirus continues to be a threat, even in places like New York where infections have leveled off.

The coronavirus, also known as COVID-19, is the greatest public health crisis the United States has faced in over a century, with over two million confirmed infections and over 120,000 deaths across the country. Naturally, many employers want to curtail the spread of this disease, and so have imposed strict procedures on their employees, including mandatory testing for COVID infection. The risk, however, is that some employers have gone too far, and may now be treading on potential violations of the Americans with Disabilities Act (ADA) in their zeal to contain the disease.

In a recent rule clarification, the EEOC has stated that while testing employees for current COVID infection is permissible, testing them for COVID antibodies is not, and may constitute an ADA violation. The reason is that antibodies are only present in those who were previously infected, not in those who are currently infectious. While testing employees for an extant coronavirus infection is allowable because it is preventing a direct threat to the health and safety of others, testing someone for COVID antibodies merely serves to discriminate between those who have previously been infected and those who have not. As such, employers should be careful about this distinction and ensure they are only testing for current, rather than prior, coronavirus infection.

If you have gotten into a legal dispute with your employer, it is important that you seek the guidance of an experienced New York employment lawyer who can protect your legal rights and advocate on your behalf. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 39 years’ experience handling the many aspects of employment law. To schedule an appointment with New York City employment lawyer Steven Mitchell Sack, call (917) 371-8000.

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