Antibody Tests Should Not Inform Decisions Whether Employees Return to Work

On June 17, 2020, the EEOC updated its guidance, What You Should Know About Covid-19, the ADA, the Rehabilitation Act, and Other EEO Laws, regarding what testing employers may require for employees re-entering the workplace. (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) The update is based on guidelines established by The Centers For Disease Control (“CDC”), which state that antibody test results “should not be used to make decisions about returning persons to the workplace.” The EEOC’s most recent guidance states that under the Americans With Disabilities Act (the “ADA”) an employer may not require antibody testing before permitting employees to return to the workplace. The guidance explains that an antibody test is a “medical examination” under the ADA and, because of the CDC’s guidance set forth above, such a test does not meet the ADA’s requirement of an inquiry that is “job related and consistent with business necessity.” The guidance specifically notes, however, that antibody testing is different from testing to determine whether someone has an active case of COVID-19. Previous guidance from the EEOC allows the latter, as it is permissible under the ADA.

If you have questions about any aspect of the EEOC’s guidance, please contact the Lawrence & Bundy LLC attorneys with whom you work.