Employees can’t be required to take COVID-19 antibody testing without violating the Americans with Disabilities Act. This was the statement made by the EEOC in its updated technical assistance publication addressing questions under the Federal Equal Employment Opportunity Laws related to the pandemic, including COVID-19 antibody testing.
In light of current CDC Interim Guidelines, the ADA currently does not allow employers to require antibody testing before allowing employees to re-enter the workplace. For greater detail on COVID-19 antibody testing and the workplace, please reference the EEOC’s “What You Should Know About COVID-19 and the American with Disabilities Act (ADA), the Rehabilitation Act, and Other EEO Laws.” An excerpt is provided below:
Q: 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)
A: 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.
Antibody Testing and Return to Work Requirements
Many employers are implementing certain safety measures to reduce the risk of COVID-19 exposure in the workplace. While the EEOC has approved employers taking temperatures and conducting COVID-19 testing as return to work requirements, it has said no to antibody testing.
The EEOC’s updated guidance serves as a reminder that employers with the best of intentions must be careful not to take actions that violate the employment laws that govern the workplace.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
