New EEOC Guidance Prohibits Antibody Testing of Employees

In its newest COVID-19 guidance, the U.S. Equal Employment Opportunity Commission (EEOC) explains that employers may not require employees to take an antibody test before returning to the workplace. Specifically, the guidance makes clear that employers may not use antibody tests in making decisions about which employees can return to work and may not require employees to take an antibody test as a condition of employment. To require antibody testing would constitute an impermissible medical exam under the Americans With Disabilities Act (ADA), the guidance states, because it would not be “job related and consistent with business necessity” as is required for medical examinations or inquiries for current employees. In other words, whether an individual tests positive for COVID-19 antibodies is not related to the performance of any job duties or otherwise necessary for business operations.

Although the new guidance prohibits antibody testing of employees, the EEOC continues to permit mandatory COVID-19 screening of employees as a condition of their return to work. Under the ADA, an employer can exclude an employee from the workplace solely because of the employee’s medical condition only if that medical condition poses a “direct threat.” The EEOC recognizes that coronavirus constitutes a direct threat to employees and therefore allows employers to require employees to submit to viral testing.

The agency also noted that it could revise the guidance “in response to changes in the CDC’s recommendations.” Thus, employers should continue to monitor the EEOC’s guidance as it changes. Clark Hill’s experienced employment counsel is available to assist with the EEOC’s guidance and its implications.