Employers May Not Require Back-To-Work Antibody Tests of Employees

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers to clarify that employers may not require COVID-19 antibody testing before permitting employees to re-enter the workplace. Antibody tests can show whether the subject had a past infection or has recovered from the virus that causes COVID-19. Currently, there is a fair amount of debate in the scientific community as to what the results of antibody tests mean and whether they demonstrate immunity to the virus.

The EEOC’s position results from separate guidelines from the Centers for Disease Control and Prevention (CDC), which provides that antibody test results “should not be used to make decisions about returning persons to the workplace.” Given the CDC’s position regarding antibody testing, the EEOC explained that “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.” According to the EEOC, requiring an employee to submit to an antibody test before re-entering the workplace violates the ADA’s prohibition of certain medical inquiries/tests of current employees.

It is important to note that antibody tests are not the same as COVID-19 tests, which look for signs of active virus in the subject. The EEOC has previously indicated in its guidance that under the ADA employers may require employees to submit to a COVID-19 test before re-entering the workplace because an individual with the virus will pose a direct threat to others.

The EEOC’s Technical Assistance Questions and Answers, including the updated guidance related to antibody testing can be found here.