July 12, 2020

Volume X, Number 194

July 10, 2020

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July 09, 2020

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Updated EEOC Guidance: COVID-19 Antibody Testing Cannot Be Required to Return to Work

Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers on COVID-19 issues to state that employers cannot require antibody testing of its employees before they return to work.  The EEOC’s guidance came in response to the CDC’s earlier statement regarding antibody testing.  In adding Question A.7, the EEOC stated: “An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. ”  The full set of EEOC Technical Assistance Questions and Answers can be found here.

Employers should continue to check for updates from the EEOC, the U.S. Department of Labor, OSHA, and your State’s Department of Health.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 181

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About this Author

Timothy J. Domanick, Jackson Lewis, career counseling management attorney, human resources lawyer
Associate

Timothy Domanick is an Associate in the Long Island, New York, office of Jackson Lewis P.C. His practice focuses on employment litigation.

Mr. Domanick has spent the duration of his career counseling management and human resources professionals on many employment law issues. Throughout his career, he has been involved in numerous proceedings before federal and state courts and various administrative agencies.

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