The EEOC just amended its guidance regarding antibody testing under the Americans With Disabilities Act. Currently, the EEOC's position is that an employer cannot require antibody testing before permitting employees to re-enter workplaces. In doing so, the EEOC is relying on recent CDC Interim Guidelines that antibody test results should not be used to make decisions about returning employees to the workplace. In light of that guidance by the CDC, the antibody test 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 reiterates that it will “continue to closely monitor CDC's recommendations, and could update this discussion in response to changes in CDC's recommendations.”
If you are an employer that has any questions or concerns about compliance with federal or state law during the COVID-19 pandemic, Rose Kallor, LLP provides a full range of legal counseling to private and public-sector employers. Please contact us with any COVID-19-related issues you face or anticipate facing, and we will be happy to assist you.