Workplace Antibody, Viral and Temperature Tests

Can Employers require these tests?

 On June 17, 2020 the Equal Employment Opportunity Commission (EEOC) clarified how employers may screen workers for COVID-19. If an organization decides to utilize any or all the tests make sure COVID-19 testing is implemented consistently, stay within EEOC guidelines and follow U.S. Centers for Disease Control and Prevention (CDC) recommendations.

Antibody Test: No

• ​Antibody tests show whether someone once had COVID-19. An antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).
• The CDC has said that antibody tests shouldn't be used to make decisions about returning individuals to the workplace, and the EEOC adopted the CDC's recommendation. The EEOC clarified on June 17, 2020 that the Americans with Disabilities Act (ADA) prohibits mandatory antibody testing before allowing employees to return to the workplace.
• The EEOC explained that antibody testing would be considered a medical examination and isn't job-related and consistent with business necessity. To be job-related, there would have to be problems with performance or concerns about a direct threat to health.

Viral Test: Yes

• ​A viral test checks samples to find out if an individual is currently infected with COVID-19. 
• Employers may ask employees who have symptoms or a COVID-19 exposure to undergo a viral test to detect current infections. Such tests are permissible under the ADA because they are job-related and consistent with business necessity as an individual with the virus will pose a direct threat to the health of others. 
• Before requiring mandatory viral testing, employers must ensure that the viral tests are accurate and reliable. Employers may review guidance from the 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. Employers should also remember that accurate testing only reveals if the virus is currently present, and that a negative test does not mean the employee will not acquire the virus later.
• If employees have tested positive for COVID-19, they may be required to test negative before they return to work. Employers occasionally even require employees test negative twice before returning, out of concern that the first test might be a false negative. When an employer adopts this protocol, it should be able to show that it was job-related and consistent with business necessity.

Temperature Test: Yes

• ​Temperature tests are used for one of COVID-19's symptoms—fever.
• The EEOC has said that temperature taking is allowed during the COVID-19 pandemic.
• When taking temperatures in the workplace, consider confidentiality as set forth under the ADA.
• Employers shouldn't take temperatures in front of other employees and shouldn't announce if someone has a temperature in the presence of co-workers.
• Employers should screen in a private room or in a tent outside the workplace. If employees aren't taking their own temperatures, the person taking temperatures should wear personal protective equipment (PPE). Infrared digital thermometers are recommended over oral thermometers.
• A person's temperature at 100.4 degrees Fahrenheit or higher should be sent home and proper tracing protocols should be followed. Employees in contact with that person should be notified that someone (name kept confidential) they have interacted with has shown symptoms, and the co-workers should get tested and stay away from the workplace for 14 days.
• If someone is showing signs of COVID-19, individuals can be asked to have their temperature taken in a confidential manner or asked to get a viral test for COVID-19.