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.