Testing, testing, 1-2-3: ADA still has final say on return-to-work testing for employers

As COVID-19 cases rebound in certain states, employers are grappling with how to safely usher employees back to work. Undoubtedly, some degree of testing is necessary to make sure employees reintegrated into the workforce don't pose a safety risk to themselves or others. While employers would do well to take every precaution available during this time, it's equally important to remember that some types of screening, even when required with the best intentions, are still unlawful under current employment laws.

COVID-19 tests vs. antibody tests

In late June, the Centers for Disease Control and Prevention (CDC) published interim guidelines intended to help employers navigate the uncharted terrain. In short, the Americans with Disabilities Act (ADA) allows employers to test employees for COVID-19 before permitting them to return to work.

But what about the much-discussed antibody tests? A lot of debate is swirling around this type of testing and its usefulness for tracking COVID-19 infections. After all, antibody tests can help determine which employees may have already been infected with the virus and therefore may be immune to further exposure.

Certainly, information from the antibody tests would help an employer weigh the safety risks for its returning workforce. Based on the CDC's latest guidance, however, the Equal Employment Opportunity Commission (EEOC) declared the tests are impermissible under the ADA.

For now, antibody screenings test negative with the ADA