Updated April 23, 2020 to reflect new EEOC guidance.

It seems clear now that we are far from the end to this pandemic. But, just as clearly, we are now reaching the end of the beginning of this pandemic.

We’ve been staying at home for several weeks and some other states are already considering loosening the restrictions.  Essential employees can still work but employer are asking questions about how best to keep the workplace safe.

One question that seems to be popping up: Can employers require antibody testing as a condition for employees returning to work?

The EEOC has made it clear that employers can institute testing given that the pandemic represents a “direct threat”.

As the EEOC stated in its most recent guidance:

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.

So, as I’ve noted before, the EEOC has now said that employers can measure employees’ body temperature before employees begin a shift.

The EEOC has also updated its guidance last Friday to make it clear that the “ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety”.

(Update 4/23/20 – The EEOC has provided a further update on its site regarding such testing.  It provides the following:

An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers 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.)

But as the Hartford Courant is quick to note this morning, while “Connecticut hospitals say antibody testing could help the state emerge from its COVID-19 crisis by indicating who is safe to return to work … experts warn of significant limitations.”

For example, “Doctors still can’t say for certain that antibodies provide protection against COVID-19, nor do they know how long any immunity might last. Meanwhile, false positives could undercut the tests’ value.”

As one Yale immunologist stated:

Right now there’s this idea that the antibody tests are going to be a panacea, they’re going to tell us who’s immune and who’s safe and ready to go back to work.  And unfortunately, the current tests, with the evidence we have, would not give that indication.

As Jon Hyman noted in his Ohio Employer’s Law Blog this morning as well, employers “should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.”

Indeed, I think employers are going to have to tread very cautiously for now.

Taking temperatures of employees sounds good in theory, but there is evidence that people may be asymptomatic.

Antibody tests right now suffer from the same deficiences; they may just not be reliable now.

Employers can still ask for return to work documentation from a physician but a doctor’s note may be tough to come by.  Employers should be flexible in these times and continue to track the expert guidance as this area continues to evolve.