On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) announced that employers may not require employees to take a test to detect COVID-19 antibodies because it would be a violation of the Americans with Disabilities Act (ADA)1. According to this guidance, an antibody test is a medical examination covered by the ADA. The CDC has explained that these antibody tests “should not be used to make decisions about returning persons to the workplace.”2 Therefore, such tests do not satisfy the “job-related business necessity” standard that is required to avoid liability under the ADA. However, COVID-19 viral tests that search for active cases are permissible for employers under the ADA. Therefore, employers should be careful when screening their employees to return to the workplace. COVID-19 viral tests can be required, but antibody tests should only at most be encouraged. Anything more will constitute a violation of the ADA.
1 CDC, Interim Guidelines for COVID-19 Antibody Testing, (May 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html
2 CDC, Interim Guidelines for COVID-19 Antibody Testing, (May 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html