EEOC states that requiring antibody tests prior to entry to the workplace is unlawful

Hogan Lovells

Hogan Lovells

As employers across the country are implementing return to work procedures and are gradually opening up their workspaces, many employers were left with unanswered questions regarding what testing they may conduct prior to permitting entry into the workplace.  The EEOC has previously taken the position that employers may test employees for an active COVID-19 infection (through a viral COVID-19 test) prior to entry into the workplace, and may conduct other screening mechanisms in an effort to prevent employees from entering the workplace with COVID-19, such as temperature checks. In recent guidance, however, the EEOC has stated that, at least for now, an employer may not require employees to undergo serological (antibody) testing as a condition of returning to work.

Although some employers had hoped that antibody testing might help identify employees who were potentially immune to COVID-19, the Centers for Disease Control and Prevention (CDC), has stated that the meaning of an antibody test is not well defined and understood at this time, and therefore, antibody testing “should not be used to make determinations about returning persons to the workplace.” Accordingly, the EEOC has taken the position that employers may not require an antibody test before returning to work. Importantly, however, the EEOC also stated that it will continue to monitor CDC guidance and that the EEOC guidance may change as direction from the CDC changes.

Specifically, the EEOC’s Updated FAQ Guidance states:

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.

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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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