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Workplace Antibody Tests Can’t Be Required, EEOC Says (1)

June 17, 2020, 7:09 PMUpdated: June 17, 2020, 8:19 PM

Federal disability law doesn’t allow employers at this time to require coronavirus antibody testing before employees return to work, according to the Equal Employment Opportunity Commission.

The civil rights agency’s latest guidance falls in line with advice from the Centers for Disease Control and Prevention, which had said the tests shouldn’t be used to “make decisions about returning persons to the workplace.” The presence of antibodies in a test can’t be equated with a worker’s immunity from Covid-19, the CDC guidance said.

The EEOC has, however, allowed employers to test workers for Covid-19 under the Americans with Disabilities Act. If an employer requires a mandatory medical evaluation of an employee, the ADA says it must be “job related and consistent with business necessity.”

The EEOC has said that because an individual suffering from the virus poses a “direct threat” to the health of others in a workplace, Covid-19 tests meet that requirement under the ADA.

“Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test),” the agency said in its updated guidance, released Wednesday.

The agency said it “could update this discussion in response to changes in CDC’s recommendations.”

(Updated to reflect additional reporting.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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