As businesses evaluate whether and how to reopen their doors, some employers have considered mandatory antibody testing for employees. "Not so fast," said the U.S. Equal Employment Opportunity Commission (EEOC) recently. Yesterday, the EEOC declared that the Americans with Disabilities Act (ADA) prohibits mandatory antibody testing as a condition for employees' return to the workplace.
The EEOC relied upon the Center for Disease Control's Interim Guidelines, which instruct that antibody testing "should not be used to make decisions about returning persons to the workplace." According to the EEOC, antibody testing of employees is not sufficiently related to a business necessity because the testing is not a fully reliable method for determining who may safely return to work. Thus, the EEOC believes antibody testing does not meet the ADA's standards for permissible medical examinations in the workplace.
In light of this development, employers that have recently considered mandatory antibody testing should reevaluate their other options for determining who may return to a job site. As we previously wrote here, other mandatory medical inquiries remain permissible in the eyes of the EEOC, including temperature checks, medical questionnaires, and viral tests for COVID-19.
We will continue to monitor the EEOC's guidance on this topic and issue new client alerts regarding further developments. For questions related to the permissibility of employee medical inquiries or how to reopen an employer's workplace, please do not hesitate to contact Nicholas M. Reiter at 212.370.6296 or nmreiter@Venable.com or any other member of Venable's national Labor and Employment practice group.