EEOC Issues Updated Covid-19 Publication Addressing Antibody Testing

The new question added to the publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” explains that in light of current CDC Interim Guidelines, the ADA at this time does not allow employers to require antibody testing before allowing employees to re-enter the workplace. This information is provided in Q&A A.7. 

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 may be permissible under the ADA. 

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 the CDC’s recommendations and could update this discussion in response to changes in the CDC’s recommendations.