Thursday, June 18, 2020

Coronavirus Update 6–18–2020: Errata—employers cannot require antibody tests of employees, says EEOC

Two months ago I suggested that the EEOC would conclude that employers could require COVID-19 antibody tests as a condition of employment. Yesterday, based on updated guidance from the CDC, the EEOC said the exact opposite. Given the inherent unreliability of COVID-19 antibody tests, I'm happy to have been wrong.

According to interim guidance the CDC recently published, COVID-19 antibody test results "should not be used to make decisions about returning persons to the workplace." 

Based on the CDC's guidance, the EEOC has confirmed that an antibody test "constitutes a medical examination under the ADA" that "at this time 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 adds that it "will continue to closely monitor CDC's recommendations, and could update this discussion in response to changes in CDC’s recommendations." What will we see first, a COVID-19 vaccine or a reliable antibody test?