Does Mandatory COVID-19 Antibody Testing Violate the ADA?

In the last two months, there has been a great deal of discussion about the role that COVID-19 antibody testing, which identifies whether an individual has ever had COVID-19, can and should have in workplaces moving forward.  As we noted in a blog post from last month, the U.S. Centers for Disease Control and Prevention (“CDC”) has recommended that employers should not use COVID-19 antibody test results “to make decisions about returning persons to the workplace.”  As we noted in our blog post at the time, the CDC made this recommendation based upon the lack of definitive data on the extent of COVID-19 immunity as well as the sizable likelihood of false positive results.

In updated guidance issued earlier this week, the U.S. Equal Employment Opportunity Commission (“EEOC”) weighed in on this issue, stating that “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”  The EEOC noted that, in light of the CDC’s recommendation, a COVID-19 antibody test does not, at this time, meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees.  The EEOC reiterated, however, that viral tests (i.e., those that determine whether an individual has an active case of COVID-19), remain permissible under the ADA.

In light of the EEOC’s announcement (which, as the EEOC notes, can be subject to change based upon updates in the CDC’s recommendations), employers must refrain from requiring employees to undergo a COVID-19 antibody test before returning to work.  For questions about this or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.