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Legal Alert

EEOC Clarifies That Employers Cannot Require COVID-19 Antibody Tests

6.19.20

The EEOC further revised its guidance to employers to clarify that it does not deem workplace antibody testing lawful under the Americans with Disabilities Act (ADA). COVID-19 antibody tests have recently been touted as a way to help prevent infection spread in the workplace, as they could be incredibly useful to employers – if deemed effective and reliable. Unfortunately, we do not yet know if or the extent to which the presence of the relevant antibody means that an individual is completely or partially immune to future COVID-19 infection. While antibody tests have a vital role in analyzing the spread of and our response to COVID-19, so far this testing has not been determined to be a useful mass screening tool for employers – which prompted the EEOC to clarify its stance on the matter.

What Did The EEOC Say?

According to the recently updated FAQ document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, the EEOC now states:

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.

It’s important to note that the EEOC continues to find in vitro diagnostic (IVD) testing for the SARS-CoV-2 virus to be business-related and consistent with job necessity, which means employers are able to pursue this path.

What Are The Takeaways From This Development?

Conclusion

Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney or any member of our Post-Pandemic Strategy Group Roster. You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.


This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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