EEOC Nixes Antibody Testing, Addresses Other Return To Work Issues

As businesses across the country move toward re-opening in the midst of the COVID-19 pandemic, the Equal Employment Opportunity Commission ("EEOC") continues to provide updates to its guidance to employers relating to COVID-19 and its interplay with federal anti-discrimination laws.  This week, the EEOC published several key updates, addressing whether employers can require employees to undergo antibody testing and other questions about returning employees to work.  (For a full summary of the EEOC's earlier guidance, please visit our prior alerts here and here.)

In its most recent update, the EEOC has advised that employers may not require employees to take an antibody test before returning to work.  The EEOC explained that antibody tests constitute a medical examination.  Under the Americans with Disabilities Act ("ADA"), employers can only conduct medical examinations of current employees if doing so meets the statute's "job related and consistent with