On June 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” resource. Specifically, the EEOC answered whether it was permissible under the ADA for an employer to require its employees to undergo an antibody test prior to returning to work. The answer is now clear: no, the employer may not.
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Tests for COVID-19 itself satisfy this requirement because positive employees pose a direct threat to others. Antibody tests, however, only tell the employer if the employee had a past infection and, thus, are not aimed at determining whether any direct threat exists.