Can I require COVID-19 antibody testing before employees return to work?

Currently, the answer is no.  The U.S. Equal Employment Opportunity Commission (EEOC) issued an update on June 17, 2020 clarifying this issue.  The EEOC pointed to the Center for Disease Control and Prevention’s (CDC) interim guidelines, which state that antibody test results “should not be used to make decisions about returning persons to the workplace.”  As a result, antibody testing does not meet the American with Disabilities Act’s (ADA) standard that medical examinations be “job-related and consistent with business necessity”.  Requiring antibody testing before an employee can work would violate the ADA.

Although an employer cannot require antibody testing, COVID-19 viral testing is permissible.  The EEOC states that COVID-19 viral testing is different in that it tests if an employee is positive for COVID-19.

The EEOC notes that this issue is fluid and could change if the CDC recommends new guidance.

If your business needs assistance in employment matters, please contact Hackler Flynn & Associates.

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