May 9, 2021

Volume XI, Number 129

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May 07, 2021

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EEOC COVID-19 Guidance: Return-to-Work Antibody Testing Prohibited

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance to clarify that the Americans with Disabilities Act (ADA) does not allow employers to require employees to undergo antibody testing before their return to the workplace. Relying on interim guidelines published by the U.S. Centers for Disease Control and Prevention (CDC), the EEOC has taken the position that an antibody test constitutes a medical examination under the ADA but does not meet the “job related and consistent with business necessity” standard for permissible medical inquiries. 

Notably, an antibody test is different from a viral test to determine whether someone has an active case of COVID-19. The EEOC reiterated that COVID-19 viral tests are permissible under the ADA. 

The EEOC will continue to monitor the CDC’s recommendations and update its position if necessary. Employers are encouraged to keep up to date and follow the most current information on maintaining workplace safety.

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© 2021 Wilson ElserNational Law Review, Volume X, Number 171
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Gregg S. Kahn Employment & Labor Attorney Wilson Elser New Jersey
Partner

Gregg Kahn focuses his practice on labor and employment litigation, representing employers of all sizes. Gregg also devotes a substantial portion of his time to professional liability defense and real estate litigation. In his various roles over the course of his career, Gregg has counseled clients, handled complex litigation and coordinated litigation services on a nationwide basis.

Gregg has successfully defended numerous property managers and real estate brokers before HUD and the New Jersey Division on Civil Rights against charges of various forms of discrimination. Additionally...

973.735.6031
Laura Stutz Labor & Employment Litigation Attorney Wilson Elser Law Firm
Counsel

Laura Stutz practices in the area of employment law counseling and litigation. She represents management in the hospitality, retail, financial services and health care industries, including hospitals and hospital systems, nursing homes, clinical laboratories, acute care centers and retail pharmaceuticals. Laura’s practice involves counseling employers on employment laws and employee benefit issues arising under ERISA. She also litigates on behalf of management in state and federal courts and before administrative agencies over disputes involving claims of discrimination...

973.735.1461
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