The short answer is: No. Businesses can’t require their employees to take COVID antibody tests. The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on June 17, 2020 that although employers can require employees to take a COVID-19 test, they cannot require employees to take a test for COVID-19 antibodies.
The EEOC pointed to recent guidance from the Centers for Disease Control & Prevention (“CDC”) that says that antibody tests shouldn’t be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back to work.
“An antibody test constitutes a medical examination under the ADA,” the EEOC said. In light of the CDC’s guidelines that that antibody tests shouldn’t be used to make decisions about people returning to work, the EEOC found that an antibody test does not meet the ADA’s standard for medical examinations for current employees. Thus, the EEOC concluded that “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”
The EEOC stated that it would continue to closely monitor the CDC’s recommendations, and it could update its guidance in response to changes in the CDC’s recommendations.
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