June 17, 2020 – On Wednesday, June 17, the EEOC issued a further update to its guidance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws,” a series of frequently asked questions and answers regarding employer rights and duties during the coronavirus pandemic. The only new question posed and answered in the update is a significant one, in that it settles, at least for the foreseeable future, whether employers can require antibody testing before allowing employees to return to work. The EEOC answered this question in the negative:
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 the CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?
No. An antibody test constitutes a medical examination under the ADA. In light of CDC‘s Interim Guidelines…, 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 full text of the EEOC Guidance may be accessed at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
The CDC’s Interim Guidelines may be found at https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html
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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.
