EEOC Confirms Employers Cannot Require COVID-19 Antibody Testing
The EEOC recently updated its technical guidance, "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" to confirm (as previously reported here) that employers cannot require employees to undergo COVID-19 antibody testing.
The EEOC added the following question and answer to the guidance:
A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)
No. 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. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
As previously explained in our article “Return to the Workplace Part 2: Testing, an employer may satisfy the ADA’s “job related and consistent with business necessity” standard for medical examinations if the employer has a reasonable belief that an employee will pose a “direct threat” to the workplace due to a medical condition. As also noted in our article, the Food and Drug Administration has reported that antibody tests are currently incapable of definitively diagnosing or excluding COVID-19 infection. Such tests therefore do not meet the “direct threat” exception to the ADA’s prohibition of medical tests.
We will continue to monitor the guidance regarding COVID-19 antibody testing and report on any new information.
Please do not hesitate to contact any of our attorneys if you have any questions or would like additional information.