The EEOC Issues New Guidance Regarding Antibody Testing in the Wake of COVID-19

Not a day seems to go by without the Equal Employment Opportunity Commission (“EEOC”) issuing a new pronouncement about businesses’ nondiscrimination obligations as employees return  to work in a COVID-19 world. On June 17, 2020, the EEOC updated an FAQ list with new guidance stating that employers may not use antibody tests in deciding whether to return employees to work.  Use of such tests would violate the Americans with Disabilities Act (“ADA”). The EEOC’s statement follows guidance from the Centers for Disease Control.  (Our discussions of prior installments of the EEOC’s guidance for employers concerning COVID-19 and their obligations under the ADA can be accessed here and here.)

Under the ADA an employer can require an employee to submit to a medical examination if it is “job related and consistent with business necessity.” Since the CDC has declared that antibody test results “should not be used to make decisions about returning persons to the workplace,” the EEOC states that an antibody test, which constitutes a medical examination, does not meet this standard.

This does not mean, however, that employers are categorically precluded by the ADA from testing for COVID-19.  The EEOC notes that an antibody test is different from a test which indicates whether an employee has an active case of COVID-19, such as a viral test, or a temperature check. Such tests may be used to determine whether employees can return to work.  (Our discussion of the EEOC’s guidance for employers concerning temperature checks can be found here.) Guidance on testing has been constantly developing, and employers should continue to consult the CDC website and the EEOC’s FAQ list regularly for additional guidance.

As we have previously discussed, it is critical for employers to implement adequate policies and protocols to keep employees safe in the workplace both for the employees’ welfare and to reduce employers’ potential exposure to liability as employees return to work.

The lawyers at Pullman & Comley are dedicated to assisting employers in ensuring compliance with these and other COVID-19 related requirements, and we have policy templates and other useful resources available. Please contact any of our Labor and Employment Law attorneys if you have any questions.

Posted in COVID-19

This blog/web site presents general information only. The information you obtain at this site is not, nor is it intended to be, legal advice, and you should not consider or rely on it as such. You should consult an attorney for individual advice regarding your own situation. This website is not an offer to represent you. You should not act, or refrain from acting, based upon any information at this website. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship with any reader of this blog. Any links from another site to the blog are beyond the control of Pullman & Comley, LLC and do not convey their approval, support or any relationship to any site or organization. Any description of a result obtained for a client in the past is not intended to be, and is not, a guarantee or promise the firm can or will achieve a similar outcome.

Subscribe to Updates

About Our Labor, Employment and Employee Benefits Law Blog

Alerts, commentary, and insights from the attorneys of Pullman & Comley’s Labor, Employment Law and Employee Benefits practice on such workplace topics as labor and employment law, counseling and training, litigation, union issues, as well as employee benefits and ERISA matters.

Other Blogs by Pullman & Comley

Connecticut Health Law Blog

Education Law Notes

For What It May Be Worth

Recent Posts


Jump to Page