In new guidance issued on Wednesday, June 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) stated that businesses are not able to require their employees to take COVID-19 antibody tests (also called serology tests) without violating the Americans with Disabilities Act (ADA). This is in contrast to the EEOC’s previous guidance that employers ARE allowed to require tests for the active virus itself.

In its guidance, the EEOC pointed to recent statements by the Centers for Disease Control & Prevention (CDC) to the effect that antibody tests should not be used to determine immunity to COVID-19 or as the basis for decisions regarding returning to the workplace. As the EEOC considers the test to be a “medical examination” under the ADA, due to the CDC’s guidance, the test does not meet the ADA’s requirement that a medical examination be “job related and consistent with business necessity”.

The EEOC noted that it is closely following the CDC’s guidance on this topic, and may adjust its own guidance in the future as the CDC’s stance evolves.

If you have questions about how to legally get your employees back to work, please reach out to us here at Crain, Caton & James. We would love to be a resource for you during this time.

Will Stafford | [email protected] | 713.752.8658