Employers Prohibited from Mandatory Antibody Testing

Employers Prohibited from Mandatory Antibody Testing

Updated June 24, 2020

 

Employers may not use antibody test results to make decisions about returning employees to the workplace

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) published guidance based on the Center for Disease Control and Prevention (CDC) interim guidelines that address relevant federal laws related to antibody testing for COVID-19 for employees.

An antibody test constitutes a medical examination[1] under the ADA, therefore, requiring an employee to take this test would not be “job related and consistent with business necessity” as required under the ADA. Accordingly, employers may not require an employee to submit to an antibody test as a method of determining if the individual may return to work.

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 ADA and EEOC have already concluded that COVID-19 viral tests are permissible.  Employers have an overarching duty to protect their workforces from public health threat.

 

[1]29 CFR § 1630.14 - Medical examinations and inquiries specifically permitted

 

SBA UPDATES: With the updates and changes to law coming rapidly and often, you may sign up to receive updates from the SBA directly at: https://www.sba.gov/updates.

The information above is intended to act as a general resource and therefore does not address all considerations and jurisdiction-specific analyses that may need to be undertaken prior to taking action. Thus, employers should seek specific counsel.