Godfrey & Kahn Updates
EEOC clarifies that mandatory antibody tests are impermissibleJune 19, 2020
This week the Equal Employment Opportunity Commission (EEOC) updated its Q&A to clarify that employers may not require an employee to take a 2019 novel coronavirus (COVID-19) antibody test before permitting the employee to reenter the workplace. According to the EEOC, based on current guidance from the U.S. Centers for Disease Control and Prevention (CDC), mandatory antibody testing requirements for employees would violate the Americans with Disabilities Act (ADA).
The ADA’s limits on mandatory medical tests
Under the ADA, the general rule is that any mandatory medical test of employees be “job related and consistent with business necessity.” The EEOC has explained in the past that, in certain circumstances, a medical examination may be job-related and consistent with business necessity” when the employer has a reasonable belief that “the employee poses a direct threat due to a medical condition.”
Why the need for clarification?
The EEOC stated that, based on the current circumstances of the COVID-19 pandemic, “employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” Based on this reasoning, the EEOC gave employers the greenlight to conduct COVID-19 virus tests on employees and monitor employees’ body temperatures, consistent with the ADA’s “direct threat” principles. However, the EEOC did not address antibody testing. The CDC’s published Interim Guidelines stated that antibody test results “should not be used to make decisions about returning persons to the workplace.”
The EEOC weighs in
The EEOC distinguished antibody testing from COVID-19 viral tests. The EEOC explained that an antibody test constitutes a medical examination under the ADA and, in light of CDC’s Interim Guidelines, an antibody test does not meet the ADA’s “job-related and consistent with business necessity” standard. As a result, “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”
The EEOC noted it will continue “closely monitor” the CDC’s recommendations and may update its discussion on this issue.