In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has published guidance addressing relevant federal laws that employers must take into consideration while balancing the need to provide a safe work environment, summarized here and here. On June 17, 2020, the EEOC updated its guidance to address whether an employer may require its employees to take an antibody test prior to returning to work.
The EEOC stated that antibody tests constitute medical examinations under the Americans with Disabilities Act (ADA) and that requiring an employee to take this test would not be “job related and consistent with business necessity” as required under the ADA. Accordingly, employers may not require an employee to submit to an antibody test as a method of determining if the individual may return to work.
It is important to note that antibody tests are not the same as the tests administered to determine if an individual is currently infected with COVID-19 (viral tests). The EEOC’s prior guidance makes clear that employers may choose to administer a viral test to employees before they enter the workplace to determine if they have the virus because an individual currently infected with COVID-19 would pose a direct threat to the health of others in the workplace.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus or contact any member of Taft’s Employment and Labor Relations Group for employment-related questions.