COVID-19 Update: New EEOC guidance states that ADA prohibits employers from requiring coronavirus antibody tests
On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance on COVID-19 to explain why, at least for the time being, requiring employees to take COVID-19 antibody tests before returning to work violates the Americans with Disabilities Act (ADA).
These antibody tests are medical examinations designed to detect whether a person has ever been infected with the virus. Under the ADA, medical examinations of employees are prohibited unless they are “job related and consistent with business necessity.” According to EEOC guidance, these tests do not currently meet that standard.
The EEOC largely based this determination on recent guidance from the Center for Disease Control (CDC), in which it explains that the reliability of these tests is still being evaluated, so they “should not be used to make decisions about returning persons to the workplace.”
So, at least until these tests are fully developed and proven to be effective, requiring employees to undergo such examinations is not consistent with business necessity and is, therefore, prohibited by the ADA. Conversely, requiring employees to take a viral test to determine if they currently have COVID-19 is permitted under the ADA.
The EEOC stated it will closely monitor CDC recommendations on antibody tests and may adjust this guidance accordingly. Employers are advised to seek the advice of counsel when requiring medical examinations of employees to ensure ADA compliance.