On June 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an update to its COVID-19 Technical Assistance Questions & Answers, providing guidance on the use of antibody tests by employers. Though the EEOC previously approved of employers requiring employees to take COVID-19 tests during the pandemic, we have previously noted the ambiguity in the guidance and the likelihood that the EEOC would not deem antibody tests permissible under the Americans with Disabilities Act (ADA) based on the current limitations and uncertainties of those tests. In the updated guidance, the EEOC confirms our prediction, stating that “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.” The EEOC based its interpretation on current guidelines from the U.S. Centers for Disease Control and Prevention (CDC), which state antibody tests “should not be used to make decisions about returning persons to the workplace.”
Many employers are beginning to administer COVID-19 tests or are evaluating the use of COVID-19 tests as part of their infection control and employee screening programs. Employers remain free to administer viral tests, such as polymerise chain reaction (PCR) tests, that indicate the presence of the SARS-CoV-2 virus to determine if a person is currently infected. However, employers may want to continue to hold off on mandating antibody tests as part of the screening process barring a change in the CDC’s recommended use of such tests.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center. Important information for employers is also available via the firm’s webinar programs.