EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

Stoel Rives - World of Employment
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Stoel Rives - World of Employment

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities Act.  Daily temperature screening can be one tool to help stop the spread of COVID-19, as can be testing for COVID-19 when the circumstances warrant a more aggressive approach.  However, the EEOC has issued further guidance clarifying that while employers may continue to test for COVID-19 itself, employers may not test for COVID-19 antibodies.  The guidance says that antibody tests are not “job related and consistent with business necessity,” and therefore cannot be used as a basis for allowing employees to return to work or as a proxy for COVID-19 immunity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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