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LEGAL UPDATE: Mandatory Antibody Testing Not Allowed
by Mandy Hicks
The EEOC updated its Coronavirus Technical Assistance Questions and Answers. The update addresses the use of antibody tests. The guidance concludes that in light of recent Interim Guidelines from the CDC, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
The full question and answer from the EEOC guidance:
QUESTION: 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)
ANSWER: 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.
Questions? Call 270-781-6500.
