The Equal Employment Opportunity Commission (EEOC) issued updated guidance today that prohibits employers from requiring workers to take COVID-19 antibody tests. The guidance cites the Centers for Disease Prevention and Control’s (CDC’s) interim guidelines, which specifically state that antibody test results “should not be used to make decisions about returning persons to the workplace.”
The EEOC has previously confirmed that COVID-19 viral diagnostic tests (tests which identify an active infection) are permissible under the Americans with Disabilities Act (ADA) by meeting the “job related and consistent with business necessity” standard for mandatory medical testing of employees. Antibody tests, however, do not currently meet this standard and would violate the ADA according to the EEOC.
Importantly, the EEOC left the possibility of future changes open, noting that it may update its assessment if the CDC’s recommendations change.