In an update to its technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” the EEOC has taken the position that employers may not require employees to take a COVID-19 antibody test prior to re-entering the workplace.
Previously, the EEOC has stated that employers are permitted to test employees to determine if an employee has COVID-19. This remains permissible. But the EEOC has clarified that it is not permissible for an employer to perform or require antibody (also known as serology) testing, at least at the present time. The CDC Guidelines indicate that antibody tests should not be used to determine if someone is immune to the virus “until the presence, durability, and duration of immunity are established.” Such tests have also been shown to elicit a significant number of false positives depending upon the source of the test kit.
The EEOC noted that it will closely monitor CDC guidance on the issue and update its technical assistance publication as necessary. Critchfield’s Employment Law team will continue to track updates and issue alerts accordingly.
Should you have any questions in regard to COVID-19 testing as it applies to your workplace and employees, please do not hesitate to contact the Employment Law team at Critchfield.