The U.S. Equal Employment Opportunity Commission (EEOC) provided another update this week to its guidance on returning to work. Per the newest update, which comports with the CDC’s Interim Guidelines, employers may not require antibody testing before allowing employees to come back to work. The ADA only permits medical exams – like the antibody test – if they are job-related and consistent with business necessity, and the EEOC found the antibody tests do not meet this definition.
To be clear, an antibody test is a test for past, not current, infection. Employers can require employees to take tests for current COVID-19 infections (aka viral tests) under the ADA.
KJK has coverage of the EEOC’s prior guidance here and here. We will continue to monitor the EEOC’s guidelines and other rules that impact employers. If you have questions on how to handle the transition back to onsite work, please contact Rob Gilmore (firstname.lastname@example.org, 216.736.7240), Alexis Preskar (email@example.com, 614.427.5748) or any of KJK’s Labor & Employment professionals.