EEOC Guidance: Employers Cannot Test Employees for COVID-19 Antibodies

The legal landscape continues to shift rapidly during the COVID-19 pandemic. As we reported at EEOC Updates Guidance on ADA and the Rehabilitation Act In Light of COVID-19 and Ten Things to Consider In Getting Back to Work, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with Disabilities Act. Daily temperature screening can be one tool to help stop the spread of COVID-19, as can be testing for COVID-19 when the circumstances warrant a more aggressive approach. However, the EEOC has issued further guidance clarifying that while employers may continue to test for COVID-19 itself, employers may not test for COVID-19 antibodies. The guidance says that antibody tests are not “job related and consistent with business necessity,” and therefore cannot be used as a basis for allowing employees to return to work or as a proxy for COVID-19 immunity.

For specific guidance on COVID-19 testing and workplace safety measures, please contact us.