In late-March and April 2020, the Equal Employment Opportunity Commission (EEOC) released guidance addressing various questions with answers concerning COVID-19 and related workplace disability-related issues under the Americans with Disabilities Act (ADA). Recently, on June 17th, the EEOC updated its guidance to include a new question regarding antibody testing.

Most of the questions concern general employee rights and privacy and employer obligations during the current state of the COVID-19 pandemic. A few of the questions relate to the anticipated gradual return to the office of employees temporarily working remotely due to the pandemic as the crisis subsides.

The EEOC’s April update, inter alia, included a determination that employers can administer COVID-19 testing (i.e. testing for active virus), and recommended that employers do the following:

  • Determine that tests are accurate and reliable.
  • Review guidance from the Food and Drug Administration (FDA), U.S. Centers for Disease Control and Prevention (CDC), and other public health authorities and regularly check those authorities for updates.
  • Consider incidences of false positives and false negatives associated with particular tests.
  • Keep in mind that a negative test does not mean an employee will not contract the virus in the future.
  • Require that employees continue infection control practices, including social distancing, handwashing, and other cleanliness and disinfecting measures.

The April update was silent on whether its determination regarding COVID-19 testing also included antibody testing. Antibody testing (i.e. serological testing), is able to detect antibodies from a previous infection. However, the test can take one to three weeks for antibodies to develop following onset of symptoms, and it is not certain that antibodies provide immunity or, if so, how long immunity would last – the current reliability and utility of these tests is in question.

The June 17th update to the EEOC guidance weighs in on antibody testing in the workplace. Specifically, the EEOC provides an answer to the following question:

CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the American with Disabilities Act (ADA) may an employer require antibody testing before permitting employees to re-enter the workplace? 

 The EEOC concludes that antibody testing constitutes a medical examination under the ADA, and employers cannot require antibody testing before permitting employees to re-enter the workplace.

In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”

 It is important to note that as with other types of COVID-19-related guidance, the EEOC will continue to monitor the CDC’s recommendations, and update its discussion on this topic in response to changes in the CDC’s recommendations.

Takeaway

 In general COVID-19 testing methods come with administrative burdens to implement and ensure compliance. Such testing presents privacy implications, particularly with respect to testing that requires a blood sample or swab. Moreover, any information collected should be protected with access appropriately limited, particularly if the organization is using a third party. As issues and concerns around COVID-19 unfold daily, employers must prepare to address the threat as it relates to the health and safety of their workforce.

 

 

 

Print:
EmailTweetLikeLinkedIn
Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.