EEOC Issues Guidelines on Whether Employers Can Require Antibody Testing Before Allowing Employees to Re-Enter the Workplace
On June 17, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated and expanded its publication, which addresses questions arising under the Americans with Disability Act (the “ADA”), the Rehabilitation Act, and other Federal Equal Opportunity Laws related to the COVID-19 pandemic. The new question added to the publication explains that, pursuant to Centers for Disease Control and Prevention’s Interim Guidelines, the ADA does not allow employers to require antibody testing before allowing employees to re-enter the workplace. An antibody test constitutes a medical examination under the ADA and does not meet the ADA’s “job related and consist 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. However, the EEOC has already stated that viral tests used to determine if someone has an active case of COVID-19 are permitted.
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