EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised (1) this may change as the science develops and (2) an employer may be able to require active virus testing (which is commonly done with a nasal swab) if such testing is uniformly required and “job-related consistent with business necessity.”

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

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