June 18, 2020 EEOC Clarifies that Employers May Not Require COVID-19 Antibody Tests as a Condition of Employment

Yesterday, the EEOC updated its COVID-19 guidance to state that in light of guidance from the Centers for Disease Control and Prevention (CDC), the use of a COVID-19 antibody test as a condition of employment would violate the Americans With Disabilities Act (ADA). The EEOC reasoned that an antibody test, as distinguished from a test for the presence of the virus, is not “job related and consistent with business necessity” and, therefore, does not meet the ADA’s definition of a permissible medical test.

Below is the complete text of the EEOC’s statement:

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.

The complete EEOC guidance can be found here.

What This Means

Employers may use viral tests, but not antibody tests, as a condition of employment. Employers who continue to use antibody tests are at risk for a violation of the ADA.

AUTHOR
  Fred Plevin