skip to Main Content

Antibody Testing Cannot be Required Under ADA

Michele Kauinui at her desk

One of the most challenging parts of doing HR today is keeping up with the latest news and rules about COVID-19. To say things are changing quickly is an understatement.

The CDC had said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.”

Based on this information, news today from the EEOC provides guidance for businesses who may be considering antibody testing for returning employees. Anyone planning to require antibody testing as part of their employee screening procedures, should think again.

The latest FAQ update from the EEOC states, “An antibody test constitutes a medical examination under the ADA…. [and] does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees.”

Antibody testing may be offered to returning employees, but it cannot be required.

For example, we have clients who are bringing the lab onsite and offering it to those who are interested. Results go to the employees directly and remain confidential.

And you can still screen returning employees by taking their temperatures and having them complete a health screening questionnaire, amongst other safety precautions, if they are appropriate for your business.

Below is the full text of the updated antibody question from the EEOC website.

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

Michele Kauinui is Director of HR Services at simplicityHR by ALTRES

Have a question for one of our HR experts? To learn more about this issue or to schedule a free consultation on the advantages of human resources outsourcing, contact simplicityHR.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.

Back To Top