Yesterday, the EEOC updated its guidance on complying with the ADA and other employment laws during the pandemic and has even included FAQ about issues employers will encounter. In short, it is prohibiting employers from requiring a COVID antibody test as a condition of returning or remaining at work as inconsistent with business necessity, etc. Here is the new FAQ added yesterday:
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.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
