On June 17, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on disability-related inquiries and medical exams.
In response to Interim Guidelines from the Center for Disease Control (“CDC”) stating that antibody test results “should not be used to make decisions about returning persons to the workplace,” the EEOC has similarly announced that under the Americans with Disabilities Act (“ADA”) an employer may not require antibody testing before permitting employees to re-enter the workplace. As antibody tests constitute a medical examination under the ADA, they would not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for employees in light of the CDC guidelines.
An antibody test is however different from a COVID-19 test which is used to detect the presence of the COVID-19 virus. The EEOC had previously stated in its earlier guidance issued on April 23, 2020, that employers are permitted to administer a COVID-19 test before allowing employees to enter the workplace.
The EEOC indicated it may further update its guidance on testing in response to changes in the CDC’s recommendations. Employers should nevertheless continue to require employees to observe other infection control practices such as social distancing, regular handwashing, and other measures in the workplace to prevent transmission of COVID-19.
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