Can Employers Require COVID-19 Testing?

In its latest guidance, the Equal Employment Opportunity Commission has stated that businesses can't make workers take tests that detect COVID-19 antibodies without violating the Americans with Disabilities Act. This guidance answered an open question after the EEOC gave businesses the green light to test employees for the virus itself.

Since a pandemic was declared, the EEOC has regularly issued guidance in a technical assistance document on its website, which provides answers to questions surrounding employers' response to the virus and their obligations under federal anti-discrimination laws. This latest entry deals with antibody or serology tests, which determine whether a person was ever infected with COVID-19 — even if they were asymptomatic — and built up antibodies to the disease.

In providing this most recent guidance, the EEOC pointed to recent guidance by the Centers for Disease Control & Prevention that says in part that antibody tests should not be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back on the job.

According to the EEOC, “An antibody test constitutes a medical examination under the ADA” and is not permissible. The EEOC further stated that, “In light of CDC's interim guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA's ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees…Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”

This latest guidance comes about two months after the EEOC told employers that they are allowed to administer viral tests that determine if people are actively infected with COVID-19 before letting workers back on a job site. This guidance did not answer the question of whether businesses could use antibody tests as a basis for employment decisions. The Commission noted that it would likely have to tackle that topic in the future.

In Wednesday's guidance, the EEOC was careful to note that antibody tests and viral tests are two different things and that the latter is still permissible under the ADA, as the commission said in its April guidance, even though the former is not.