EEOC Determines That A Business Can Not Test Its Employees For Covid-19 Antibodies

WFCA

As businesses begin to open, it is important to know what steps are required and what are not permitted to protect customers and employees. The Equal Employment Opportunity Commission (EEOC) has issued guidance on what is allowed and what is prohibited under the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act. WFCA previously published an update on avoiding discrimination in Bringing Employees Back to Work.

Recently, the EEOC updated its guidance on COVID-19 to clarify that employers may not test employees for COVID-19 antibodies. Requiring antibody testing before allowing employees to re-enter the workplace would violate the Americans with Disabilities Act (ADA). EEOC determined that an antibody test “constitutes a medical examination under the ADA,” and an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard. Whether a person has or does not have the antibodies does not affect their ability to perform their job. The prohibition on antibody testing is not applicable to a viral test to determine if someone has an active case of COVID-19. The EEOC has already advised that testing employees to determine if they currently are infected with the coronavirus is permissible under the ADA.

Since EEOC regularly updates its rules and guidelines, it is recommended that all flooring retailers and contractors should check to see if new updates were published. For further information on what is allowed under the EEOC guidance, please click on EEOC’s What You Should Know About COVID-19.

WFCA will continue to provide updates as new rules and guidelines. In the meantime, please feel free to send your concerns or questions directly to jeffw@jkingesq.com and mperkins@lobbyit.com.

Notice: The information contained in this update is abridged from legislation, court decisions, and administrative rulings, and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.

Together,

WFCA Team

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