EEOC Issues Updated Guidance Regarding the Permissibility of Antibody Testing Under the ADA

CATEGORY: Special Bulletins
CLIENT TYPE: Public Employers, Public Safety
AUTHOR: Anthony Risucci
PUBLICATION: LCW Special Bulletin
DATE: Jun 22, 2020

On June 16, 2020, the Equal Employment Opportunities Commission (“EEOC”) issued updated Technical Assistance Questions and Answers (“Guidance”) concerning COVID-19 and compliance with the Americans with Disabilities Act (“ADA”) and Rehabilitation Act.  The updated Guidance answered a question that remained outstanding from prior guidance provided by the Commission concerning whether an employer would be permitted to require its employees to submit to COVID-19 antibody testing under the ADA.

The updated Guidance clearly and unmistakably answered this question: the ADA prohibits an employer from requiring employees to submit to COVID-19 antibody testing as part of an employer’s decision about allowing employees to return to the workplace.  The EEOC made this determination after reviewing Interim Guidance provided by the Centers for Disease Control (“CDC”), which states that antibody tests “should not be used to make decisions about returning persons to the workplace.” In reliance upon such CDC guidance, the EEOC concluded that antibody tests do not presently satisfy the standard under the ADA to qualify to be excepted from the nondiscrimination provisions of the ADA.

A prior version of the Guidance from the EEOC on April 23, 2020 provided that an employer could permissibly require employees to submit to a test for COVID-19 that would detect the presence of the virus that causes COVID-19 in order to ensure the health and safety of its workplace.  The EEOC provided this direction despite restrictions on workplace medical-related testing set forth under the ADA.  The June 16 Guidance did not revise its prior conclusion concerning the permissibility of viral testing by employers, which the EEOC found satisfied the “direct threat” standard and thus qualified for the “job related and consistent with business necessity” exception to the nondiscrimination provisions of the ADA.

Prior to the June 16 Guidance, the EEOC had not opined on the application of the “direct threat” rationale to antibody testing.  The EEOC’s updated Guidance clarifies that because “an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’” it is not exempt from the ADA nondiscrimination provisions and, therefore, employers may not permissibly require that employees submit to such testing.