EEOC: Employers Cannot Require Antibody Testing to Return-to-Work

By: Jessica Jackler

On June 17, the EEOC updated its Coronavirus Technical Assistance Questions and Answers, specifically addressing the use of antibody tests under the ADA. The guidance concludes that in light of recent interim guidelines from the CDC, employers requiring antibody testing before allowing its employees to re-enter the workplace is not allowed under the ADA. 

In its Interim Guidelines, the CDC said that antibody test results “should not be used to make decisions about returning persons to the workplace.” The EEOC has now taken the position that antibody test results “should not be used to make decisions about returning persons to the workplace” because 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. 

The EEOC further explained 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 says it will continue to closely monitor the CDC’s recommendations, and could update this discussion in response to CDC’s recommended changes.

Practice Tip: This updated guidance is yet another example of unsettled federal law interpretations related to COVID-19 issues. As a result of this updated guidance, employers should not require antibody testing before allowing employees to return to work, but may continue to require testing for the COVID-19 virus. If you have any questions related to your return-to-work policies, please contact us.