Business Reopening Guidance: Employers May Not Base Return to Work Plans on Antibody Tests

On June 17, the EEOC updated their COVID-19 guidance (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) to state that employers cannot require their employees to receive antibody testing, the tests for which are considered “medical examinations” under the Americans with Disabilities Act (“ADA”). The EEOC cited the CDC’s Interim Guidelines to determine that the tests do not meet the ADA’s “job related and consistent with business necessity” standard for requiring medical examinations.

According to the CDC’s guidance, “serologic tests results should not be used to make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.” Moreover, “[s]erologic tests results should not be used to make decisions about returning persons to the workplace.” Consistent with this, the EEOC’s guidance states affirmative that antibody testing may not be used to make decisions about whether or not someone may return to work.

It is important to note that antibody testing is different than the viral tests, which are used to determine if someone currently has COVID-19. In April, the EEOC stated that viral tests may be permissible if the tests are job related and consistent with business necessity. Testing may be considered “consistent with business necessity” if a COVID-19-positive employee’s return to work would pose a direct threat to the health of others, including customers, clients, or coworkers. In fact, viral testing is required for certain industry workers, per New York State’s reopening guidance.

If you have questions about EEOC guidance, business reopening, or employee health screening and testing, our team is available to help.

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If you have questions about how to bring your business into compliance with New York’s new guidance, our Labor & Employment Law team is ready to help.

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