Immunity passports have been discussed in recent months as a way for people to travel freely and to go to work without anyone having to worry about who is (or is not) immune to becoming infected with COVID-19.
In the United States, companies are considering testing their employees for coronavirus antibodies—before allowing them back to work—and some countries are considering “health passports” before allowing international travelers to visit.
But what does this have to do with the Equal Employment Opportunity Commission and the Americans with Disabilities Act? Quite a bit, actually.
Immunity testing, according to Seema Mohapatra, Associate Professor of Law and Dean’s Fellow, IUPUI, could violate employees’ U.S. disability protections, and create a two-tiered society in which some are allowed to work and/or travel, and others are not.
Mohopatra says that, “The Equal Employment Opportunity Commission, the agency that enforces workplace protections, has classified COVID-19 as a “direct threat” to the workplace. So, despite ADA protections, employers can test employees for infection before letting them return to work. And someone who tests positive for COVID-19 could be excluded from the workplace until they recover.”
“But employers cannot go one step further and require employees to show that they are immune to COVID-19 in order to work. Since the lack of immunity is not a direct threat to the workplace, employers have to follow ADA guidance.”