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.