The EEOC Says “No” To An Employer’s Use of Antibody Testing

As employers continue to consider precautions to take as their businesses reopen, and as previously reported in our firm’s April 24, 2020 Legal Update, methods of testing employees before they re-enter an employer’s workplace, as permitted by the EEOC, include an employer’s ability to take the temperatures of its employees and an employer’s implementation of COVID-19 testing as part of its return-to-work procedures.

On June 17, 2020, however, the EEOC stopped short of permitting the same for COVID-related antibody testing. The specifics of the EEOC’s updated question and analysis are below:

"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."

Accordingly, the EEOC guidance makes clear that employers should be diligent about reviewing the most up-to-date guidance issued by the CDC; for now, however, any requirement that includes the need for employees to take an antibody test is not permissible.

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