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June 18, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

The Equal Employment Opportunity Commission (EEOC) has continued to provide updates to its ongoing guidance about employer obligations under federal anti-discrimination laws during the novel coronavirus pandemic, most recently concerning antibody testing.  

On June 17, 2020, the EEOC addressed an open question about the permissibility of requiring antibody testing for employees before returning to the workplace.  Even though antibody testing may be useful for determining if an individual ever had been infected with COVID-19, the EEOC concluded that employers may not require antibody testing before permitting employees to re-enter the workplace.  

The Americans with Disabilities Act (ADA) generally prohibits employers from conducting medical exams of employees or asking disability-related questions, unless such exams or the questions are job-related and consistent with business necessity, including when there is a direct threat to the health of others.  Although typically a difficult standard to meet, the EEOC has determined that an employee with COVID-19 poses such a direct threat. Accordingly, during this pandemic, an employer is permitted to screen for COVID-19 symptoms, body temperature, and even require employees to undergo tests for COVID-19 when necessary to exclude infected employees from the workplace.  

Here, however, the EEOC concluded that antibody testing does not meet the ADA’s job-related and business necessity standard.  In reaching this conclusion, the EEOC relied on Interim Guidelines from the Centers for Disease Control and Prevention (CDC), which provides that antibody testing should not be used to make decisions about returning employees to the workplace.  The EEOC noted that it will continue to monitor the CDC’s recommendations, adding that it could update this determination in response to changes in the CDC’s recommendations.

This most recent EEOC update provides further clarity for employers who are dealing with difficult issues as they plan to re-enter the workplace.  This guidance is also a clear reminder that while employers are understandably focused on the health and physical well-being of their workforce and business associates, all employment-related decisions must be made in accordance with applicable anti-discrimination laws, which remain operative during this pandemic.  As always, employers should be aware of state and local laws in jurisdictions where they do business, as they may provide broader protections than federal laws and should consult with counsel, as appropriate.
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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

GraceAnn Caramico

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.