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EEOC Issues Guidance: Employers Requiring COVID-19 Antibody Tests Violate ADA

The U.S. Equal Employment Opportunity (EEOC) added new guidance Wednesday to its updated technical assistance document relating to employers’ responses to the COVID-19 pandemic. Under the guidance, businesses cannot force workers to take COVID-19 antibody tests without violating the Americans with Disabilities Act (ADA).  “An antibody test constitutes a medical examination under the ADA,” the EEOC said. “In light of CDC’s interim guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA,” the EEOC added.

The  EEOC also pointed out that antibody tests are different from viral tests, and that the latter do not violate the ADA. As such, employers may administer viral tests to determine if employees are actively infected with the virus before letting them come back to work without violating the ADA.

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