Updated EEOC Guidance Addresses Antibody Testing

Author: Robert S. Teachout, XpertHR Legal Editor

June 22, 2020

Employers may not require antibody testing before allowing an employee to return to work, according to updated guidance from the Equal Employment Opportunity Commission (EEOC). The information was added to the publication What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws as a new question and answer (Q&A A.7). The publication answers questions about several areas of federal EEO law as related to the COVID-19 pandemic.

The guidance comes after the Centers for Disease Control (CDC) issued Interim Guidelines advising that antibody test results "should not be used to make decisions about returning persons to the workplace." As a result, the EEOC determined that an antibody test at this time does not meet the "job related and consistent with business necessity" standard under the Americans with Disabilities Act (ADA) required for medical examinations or inquiries for current employees. An antibody test constitutes a medical examination under the ADA.

The EEOC has already stated that employers may test employees to see if they have the coronavirus (COVID-19) before they enter the workplace. An antibody test is different from a viral test to determine if someone has an active case of COVID-19.

The EEOC continues to advise employers to:

  • Ensure that tests are accurate and reliable by reviewing guidance from the Food and Drug Administration (FDA), the CDC and other public health authorities, and then periodically checking for updates;
  • Consider the incidence of false-positives or false-negatives associated with a particular test;
  • Remember that accurate testing only reveals if the virus is currently present, and that a negative test does not mean the employee will not acquire the virus later; and
  • Continue to require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.