On June 17, 2020 the Equal Employment Opportunity Commission (“EEOC”) updated its ongoing FAQ on COVID-19 and stated that employers may not require antibody testing before permitting employees to re-enter the workplace.
Background . Previously, the EEOC provided that employers may require employees to undergo temperature checks, symptom screens and COVID-19 tests before entering the workplace. The rationale is that while these procedures are deemed "medical exams" under the Americans with Disabilities Act (“ADA”), the exams are nevertheless permitted if the employer has a reasonable belief, based on objective evidence, that an employee with COVID-19 will pose a "direct threat" to the employee, co-workers or others due to a medical condition. The EEOC stated that COVID-19 qualifies as such a “direct threat” and that guidance from public health authorities constitutes the requisite “objective evidence.” Thus, temperature checks, symptom screening and COVID-19 tests are permitted because they are consistent with guidance from public health authorities. The EEOC had not commented on the use of antibody testing until now.

CDC Weighs In . In its Interim Guidelines , CDC stated that antibody test results “should not be used to make decisions about returning persons to the workplace.” Accordingly, EEOC updated its guidance this week by providing that employers may not require employees to take antibody tests before entering the workplace. This is consistent with previous EEOC guidance regarding COVID-19 medical testing as such testing is only permitted if it is based on recommendations from public health authorities. 

Takeaway . Employers can still require temperature checks, symptom screening and even COVID-19 tests (i.e., a viral test) as a condition of employees entering the workplace, but cannot require antibody tests. This new guidance provides another reminder that the EEOC will continue to follow guidance from the CDC in its determinations regarding the legality of COVID-19 medical tests.

We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at    www.brgslaw.com .

Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP