The U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic.
The new question added to the publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” explains that in light of current CDC Interim Guidelines, the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace. This information is provided in Q&A A.7.
The question is: “The 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? “
The EEOC answered: “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.”
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 said it will continue to monitor developments and provide assistance to the public as needed.