New EEOC Guidance States That Employers May Not Require Employees to Take Antibody Tests to Detect COVID19

On June 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued new technical guidance stating that the Americans with Disabilities Act (“ADA”), 42 U.S.C 12101, prohibits employers from requiring employees to take antibody tests to detect COVID-19 antibodies.  The issue was addressed to the publication, “What you should know about COVID-19, the Rehabilitation Act, and Other EEO laws.”  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  

Under the ADA, an employer may make disability-related inquiries and conduct medical examinations only if they are job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c)(1998).

According to the new technical guidance, an antibody test constitutes a medical examination under the ADA. Due to the Center for Disease Control’s interim guidelines that antibody test results should not be used to make decisions about returning persons to the workplace, the EEOC determined that the antibody test does not currently 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, the EEOC wrote.

The EEOC noted that antibody tests and viral tests are different from one another and that viral tests are still permissible under the ADA, as the EEOC said in its April guidance.

If you have any questions about medical inquiries under the ADA or other COVID-19 issues, please feel free to Contact Denver’s Employment Lawyers at Baird Quinn. We would be happy to answer your questions.