Updated:  CDC Issues Interim Guidelines for COVID-19 Antibody Testing

June 17, 2020
June 17, 2020 Update. On June 17, 2020, the U.S. Equal Employment Opportunity Commission (the “EEOC”) updated its technical assistance bulletin entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” in light of the CDC’s recent guidance that antibody test results “should not be used to make decisions about returning persons to the workplace.” The updated EEOC guidance states that, at this time, antibody tests do not meet the Americans with Disabilities Act’s (the “ADA”) “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees and, therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. 
 
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On May 27, 2020, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued interim guidelines for COVID-19 antibody testing. While this guidance is primarily intended for healthcare providers, clinical laboratory professionals, and public health officials, the interim guidelines also include information relevant to employers as they consider whether and to what extent to use antibody testing in their reopening plans. 
 
The interim guidelines explain that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable testing method “likely indicates at least some degree of immunity,” it cannot be assumed that individuals with positive antibody test results are protected from future infection “until the durability and duration of immunity is established.” To that end, “additional data [is] needed before modifying public health recommendations based on serologic test results, including decisions on discontinuing physical distancing and using personal protective equipment.” 
 
As a result, the CDC’s interim guidelines state that, at this time:
  • Employers should not use antibody tests to make decisions about returning persons to the workplace.
  • Antibody tests should not be used to make decisions about “grouping persons residing in or being admitted to congregate settings,” including schools, dormitories, or correctional facilities.
 
The CDC will continue to update its recommendations on the use of antibody tests “to determine protective immunity and infectiousness among persons recently infected with SAR-CoV-2” as new information becomes available.

In light of current CDC guidance on antibody testing, the EEOC has made clear that, at this time, antibody tests do not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees and, therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. However, as discussed in our previous memorandum, EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 Crisis, the CDC has issued specific guidance for employers on potential mechanisms to prevent the spread of COVID-19 in the workplace, including the use of certain screening methods, such as temperature checks and COVID-19 testing. In addition, our memorandum COVID-19—Return-to-Work Considerations for Employers, contains information about other considerations for employers as they develop plans to reopen workplaces.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.