“Immunity passports”? “Antibody certificates”? As countries around the world consider widespread antibody or immunity testing as a precondition for normal, non-distanced life, many raise the prospect of “second class citizenship” based on COVID-19 immunity. In terms of employment discrimination, guidance from the EEOC—a federal agency charged with enforcing anti-discrimination law—suggests that employers can test for COVID-19 symptoms without violating the law, but does not say much about antibody testing and discrimination.
The Americans with Disabilities Act (ADA) protects employees against discrimination based on disabilities. Generally, the ADA prevents covered employers from excluding individuals with disabilities from the workplace and requires “reasonable accommodation” of employees with disabilities. The ADA also prevents employers from imposing medical exams or other “disability-related inquiries” of their employees unless they are job-related and consistent with business necessity. (Another law, the Genetic Information Nondiscrimination Act GINA, prohibits asking medical questions about an employee’s family members).
The EEOC has provided guidance for employers on how to keep their workplace safe without violating discrimination law. On April 23, the agency updated this guidance to explicitly state that employers can screen workers for COVID-19. The ADA allows medical inquiries that are “job related and consistent with business necessity,” the guidance explains, and medical screening during a pandemic meets this standard (the guidance emphasizes that the tests in question must be “accurate and reliable” and cannot be used to engage in unlawful discrimination). Furthermore, the agency’s Q and A on the pandemic states that an ADA-covered employer may “require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work.” (It goes on to explain that this inquiry would be permitted “either because [it] would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees”).
Testing employees for COVID-19 infection doesn’t violate the ADA, but what about testing for antibodies? The EEOC hasn’t issued guidance on that issue yet. The EEOC has stated that employers may not make disability-related inquiries of individuals without symptoms to determine if they are immunocompromised or otherwise at risk for developing the disease. Its guidance, however, leaves the door open for such inquiries if the pandemic becomes “severe or serious” in the eyes of public health officials. This seems to leave the door open to testing asymptomatic employees for antibodies, if that is consistent with public health advisories.
Of course, it’s worth keeping in mind that employers would still need to show that the threat posed by the employee “cannot be eliminated or reduced by reasonable accommodation.” If the immunocompromised or antibody-less employee could be accommodated—say, by working from home—than an employer would have a much weaker argument for conditioning their employment on an antibody test.
Written by Smita Ghosh.
