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June 22, 2020

EEOC: U.S. Employers Cannot Require Antibody Tests

On June 17, the U.S. Equal Employment Opportunity Commission (EEOC) again updated its COVID-19 guidance for employers. This guidance outlines employers’ responsibilities under federal civil rights laws. The most recent update addresses the issues of medical screening, pregnant and older workers, Americans with Disabilities Act requirements, and obligations for employees who have higher-risk family members.

One significant change includes language that bars employers from requiring workers take an antibody test to enter the workplace. The EEOC determined that, since the U.S. Centers for Disease Control and Prevention advises against reliance on antibody tests, an employer’s request to take such a test is not allowed under the Americans with Disabilities Act. (Please note: this provision applies to antibody tests only.)

As Bloomberg Law explained, “The EEOC’s guidance isn’t binding, and the agency said it could update it depending on moves by the CDC. But right now, if an employer requires antibody testing and a worker sues in court, the guidance could be wielded against the company.”) Click here for Littler’s explanation of this guidance.

According to various sources, since March 17, there have been 231 lawsuits (including 30 class actions) filed against employers due to alleged labor and employment violations related to the coronavirus.  The filings have increased rapidly over the past few months.