EEOC Issues Updated COVID-19 Guidance to Address Antibody Testing

Coronavirus News

Written By ESR News Blog Editor Thomas Ahearn

On June 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an updated and expanded technical assistance publication to address questions about federal Equal Employment Opportunity (EEO) laws related to the Coronavirus (COVID-19) pandemic such as antibody testing, according to an EEOC press release.

The EEOC – which enforces federal laws prohibiting employment discrimination – updated the publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address whether employers may require antibody testing for COVID-19 before permitting employees to re-enter the workplace.

A new question and answer (Q&A) added to the publication explains that the Americans with Disabilities Act of 1990 (ADA) does not allow employers to require antibody testing before allowing employees to re-enter the workplace under current Centers for Disease Control and Prevention (CDC) Interim Guidelines.

A. Disability-Related Inquiries and Medical Exams

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.

In response to inquiries from the public, the EEOC has provided resources on its website related to the pandemic in an employment context. The agency will continue to monitor developments and provide assistance to the public as needed. To learn more about the EEOC, subscribe to email updates and visit www.eeoc.gov.

Coronavirus (COVID-19) is a respiratory illness that spreads from person to person. As of June 22, 2020, there are approximately 8.9 million global cases and 468,000 global deaths, while the United States leads the world with approximately 2.2 million cases and 119,000 deaths, according to research from Johns Hopkins University.

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