As businesses begin the challenge of reopening and ensuring the safety of employees in the midst of the COVID-19 pandemic , the EEOC issued important guidance last week regarding the use of antibody testing. Antibody tests look for signs in the blood to determine whether the person being tested was ever infected with COVID-19—even if that person never showed symptoms. While antibody tests do not test for immunity, they may nevertheless help us understand how widespread COVID-19 is.
In light of the growing availability of antibody tests, businesses naturally have asked if it is permissible to mandate that employees take an antibody test before returning to work. The answer? No. On June 17, 2020, the EEOC issued updated guidance stating that mandated antibody testing of employees would violate the Americans with Disabilities Act (ADA). Adopting the Center for Disease Control’s guidelines, the EEOC stated that an antibody test is a medical examination under the ADA, and that administering an antibody test would not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations.
Importantly, an antibody test is different from a viral test used to determine if someone has an active case of COVID-10. The EEOC has already said that COVID-19 viral tests are permissible under the ADA.
Although employers cannot require antibody tests now, this may change with updated guidance from the CDC over the coming weeks and/or months.
For all of your employment and business needs during this pandemic, please call Kollman & Saucier, P.A. at (410) 727-4300.