On June 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated the “Disability-Related Inquiries and Medical Exams” portion of its COVID related guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to make clear that employers cannot require employees to undergo antibody testing before returning to the workplace.
Like much of the COVID-19 related guidance issued by the EEOC since the onset of the pandemic, this directive is based on the Centers for Disease Control and Prevention (“CDC”) guidelines. According to the CDC, current antibody testing cannot determine the presence, duration or durability of COVID-19 immunity. Thus, according the CDC, antibody tests should not be used to make decisions about returning employees. Based on this finding, the EEOC has concluded that antibody testing does not currently meet the ADA’s “job related and consistent with business necessity” standard for medical examinations – a requirement for any employee medical inquiry.
However, under current EEOC guidance, employers are still permitted to request that employees undergo viral testing to determine whether employees have an active case of COVID-19.
We anticipate that the EEOC will continue to update its guidance as novel employment issues emerge in the wake of the health pandemic. If you have further questions about the EEOC Guidance or other labor & employment issues related to COVID-19, feel free to contact Jeffery Wells at JWells@williamskastner.com or visit our COVID-19 Resource Center Page.