Uncategorised

EEOC, CDC Say Employees Can’t Be Required to Take COVID-19 Antibody Tests

The Equal Employment Opportunity Commission (EEOC) released new guidance on Wednesday advising that, under the Americans with Disabilities Act (ADA), employees cannot be made to take tests that detect COVID-19 antibodies. The warning comes in the wake of interim guidance from the Centers for Disease Control and Prevention (CDC) that antibody tests “should not be used to make decisions about returning persons to the workplace.”

Employers may have hoped to use COVID-19 antibody tests to determine which employees can safely return to work, because these antibodies are thought to convey at least some degree of immunity to the virus. The EEOC’s latest guidance makes clear that they cannot legally do this. Under the ADA, employees can only be required to take a medical exam that is directly related to their job function and necessary to conduct the employer’s business. That means an employer needs objective evidence that an employee is likely to have a medical condition that either impairs their ability to perform their job or poses a direct threat to others in the workplace. Because the mere presence of COVID-19 antibodies – which stay in a person’s system long after they recover from the virus and can no longer transmit it to colleagues – neither impairs employees’ ability to work nor threatens the health of others, antibody tests do not meet the ADA’s standard and are prohibited under the law.

However, as the EEOC has reiterated in all of its COVID-related guidance, employees can still be asked to take viral tests for active cases of COVID-19 and to take temperature tests. Because these tests can show whether a person presents an ongoing danger of transmitting the virus, they fulfil the ADA’s “direct threat” requirement. If an employee refuses to take a viral or temperature test, she may legally be forced to stay home.

For more information on employers’ legal obligations and employees’ rights during the pandemic, contact our employment team.

I will always be grateful for your unwavering support of me. Equally, I will always be grateful for showing me how to find my voice and strength.

Title IX case against UCLA, client confidential

It was such a weight off our shoulders; suddenly somebody else with a lot more experience was managing the case.

Sandeep Mander, Mander v. Royal Borough of Windsor & Maidenhead

We really thought that there was nothing that anybody could do for us. We were wrong.

Dr Celeste Kidd, Aslin et al v. University of Rochester et al

To get the result you got you must be as tough with your legal opposites as you are kind and understanding to your clients.

AOA client, confidential

Compared with other law firms I’ve worked with, no one matches the combination that McO has of experience, brilliance, ferocious fighting and deep empathy for their clients.

Dr Holly Atkinson, Atkinson et al v. Mount Sinai Health System, Inc. et al

Because my case could not bear public scrutiny, a very powerful institution used massive financial resources to try to crush me for asking for my disability rights. This was a huge mistake, as they didn’t know that I would obtain McO representation. I couldn’t ask for better representation.

Disability Rights client, confidential

I would like to say from bottom of my heart, thank you. Thank you to all the team. Now I can go and forget my former employer. God bless you all.

Unfair Dismissal client, confidential