Nobody Gets Antibody (Testing): EEOC Forbids Employers from Using Antibody Testing for Re-Entering Workplace

The EEOC just amended its Q&A document on COVID-19 testing to address what COVID-19 testing employers can require. At this time (and it could change), the EEOC says that the ADA does not allow employers to require antibody testing for the virus before allowing employees to re-enter the workplace. The EEOC based its decision on CDC guidelines that stated it is still unclear whether a positive antibody test indicates that a person has protective immunity or decreased transmissibility and employers should not use them to make decisions about returning employees to the workplace. In essence, the EEOC says that an antibody test does not meet the ADA’s standard for being “job related and consistent with business necessity” so it would be an impermissible medical inquiry for a current employee.

COVID-19 Tests and Temperature Checks Are Different

The EEOC pointed out, however, that an antibody test is different from a viral test to see if a person has an active case of COVID-19. According to the EEOC, testing for COVID-19 is still permissible under the ADA. Also, the EEOC guidance allowing temperature checks is still in place.

Bottom line: You can use a viral test but not an antibody test to determine if you should allow an employee to return to work.