The Business of COVID-19: Employees and Antibodies
By Matthew J. Roberts
As businesses throughout Illinois start to re-open under Phase 4 there are many questions that business owners have regarding the new normal of life affecting both themselves and their employees. One question that comes up is the role of COVID-19 antibody testing and business owners entertaining the idea that antibody testing should be used to make sure employees are safe coming back to work. With this sentiment gaining traction the Equal Employment Opportunity Commission (EEOC) came out with guidance on this topic on June 17th.
With this June 17th statement the EEOC stated that an employer who uses antibody testing this way could face violations under the Americans with Disabilities Act (ADA). The EEOC even went on further to state that using tests this way could give rise to potential discrimination claims against employers. This is due to the fact that if an employer uses the results to make any kind of employment decision then they are potentially liable for discrimination against that employee.
After this statement came out, employers started trying to do work arounds of the potential liability. Many employers felt that by making the test voluntary and then asking for consents to release the information would shield them from any liability. This is not the case either. That is because the information they are asking for is confidential medical information which does not have to be disclosed, under law, to any employer unless that information directly relates to the job. Even with making the test voluntary, this could be seen as an excuse by the employer to create a basis for terminating an employee, which again would lead to discrimination claims.
All in all, using antibody tests as part of your business’s opening procedures are not advised since it would open your company to potential liability.
For more information on this and other topics please contact the Law Offices of Burton A. Brown.
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