In light of CDC Interim Guidelines stating antibody test results “should not be used to make decisions about returning persons to the workplace,” the EEOC released guidance on June 17, 2020 indicating that employers should not require antibody tests before permitting employees to return to the workplace. 

According to the EEOC, an antibody test constitutes a medical examination under the Americans with Disabilities Act (ADA), and employers can only require ADA medical examinations of employees if the examination is “job related and consistent with business necessity.”   Consistent with the CDC’s Interim Guidelines, the EEOC has determined an antibody test is not “job related and consistent with business necessity”, and therefore, any such testing required by an employer violates the ADA.  However, the EEOC was quick to note that a viral test, i.e. testing for an active case of COVID-19, is permissible, and the prohibition on antibody testing could be revised in the future if the CDC’s recommendations change. 

The EEOC’s COVID-19 guidance continues to evolve.  For example, the EEOC recently updated its guidance to address other topics and provided the following:

• Employees are not entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.

• Employers should be diligent in responding to and addressing pandemic-related harassment, such as demeaning, derogatory, or hostile remarks directed to employees who are, or are perceived to be, of Chinese or other Asian national origin. 

• Employers may send a general notice to all employees designated to return to the workplace noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. 

• Requests for an alternate method of screening before entering the worksite due to a medical condition are reasonable accommodation requests, and should be handled as such.

• Employers cannot involuntarily exclude older workers from the workplace, even if for benevolent reasons such as protecting employees at a higher risk of COVID-19. 

• Employers should evaluate sex discrimination considerations when providing flexibilities, such as telework or modified schedules to employees with school-aged children.  

A full text of the most current “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” can be found here.  COVID-19 continues to create new and unique situations for employers, especially as businesses begin to reopen.  Polsinelli’s Labor and Employment team is available to help navigate these challenges and ensure compliance with the numerous laws that apply to employers managing a workforce during these unprecedented times.