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EEOC: Employers can’t require COVID-19 antibody testing before returning to the workplace

published in McAfee & Taft EmployerLINC | June 19, 2020

On June 17, 2020, the Equal Employment Opportunity Commission issued new guidance concerning the use of COVID-19 antibody testing.  Relying on the CDC’s Interim Guidelines, the EEOC affirmatively stated that employers cannot require COVID-19 antibody testing before permitting employees to re-enter the workplace.  The CDC’s Interim Guidance states that antibody test results “should not be used to make decisions about returning persons to the workplace.”  The EEOC stated that an antibody test constitutes a medical examination under the Americans with Disabilities Act, which are only appropriate when they are “job related and consistent with business necessity.”  Because of the guidance from the CDC, at this time, an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard.. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

Employers are still permitted to require employees who have symptoms or a COVID-19 exposure to undergo a viral test to detect current infections. Such tests are permissible under the ADA because they are job-related and consistent with business necessity as an individual with the virus will pose a direct threat to the health of others.  Before requiring mandatory viral testing, employers must ensure that the viral tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false positives or false negatives associated with a particular test. Employers should also remember that accurate testing only reveals if the virus is currently present, and that a negative test does not mean the employee will not acquire the virus later.

The EEOC has stated that it will continue to closely monitor the CDC’s recommendations and will update the guidance if warranted by any changes to the CDC’s recommendations. To prevent the transmission of COVID-19, the EEOC has further reminded employers that they should still require employees to observe infection control practices in the workplace, such as social distancing and regular handwashing.