EEOC Bans COVID Antibody Testing for Return to Work Decisions, OSHA Releases New Guidance

June 19, 2020

New guidance from the Equal Employment Opportunity Commission clarifies that the Americans With Disabilities Act (ADA) prohibits employers from using COVID-19 serology tests for determining which employees can enter the workplace.

According to the EEOC, an antibody test constitutes a medical examination under the ADA.  In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations for current employees.  Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this guidance in response to any changes in CDC’s guidance.

The Occupational Safety and Health Administration has also issued new guidance on how nonessential businesses should reopen, answering questions that run the gamut from testing and temperature checks to the risk of litigation. 

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