The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance stating that employers cannot require employees to undergo antibody or serology testing to determine whether employees were previously infected with Covid-19 or are otherwise immune to the virus.  Employers cannot require antibody testing before allowing an employee to return to work or in assigning job duties.  The EEOC’s previous guidance allowing employers to test employees for current Covid-19 infection remains in effect.

The EEOC concluded that antibody testing is a medical examination in violation of the Americans with Disabilities Act (“ADA”) because it is not “job related and consistent with business necessity.”

The EEOC relied on interim guidelines issued by the Centers for Disease Control and Prevention (“CDC”) to make this determination and noted that it might change this guidance in the future if CDC guidance changes.

Murtha Cullina’s Labor and Employment team will keep you updated with developments as they occur. If you have any questions, please contact us for assistance.