United States: EEOC Confirms That Employers’ Right to Test Employees for COVID-19 Infection Does Not Extend to Antibody Testing


Author | Wendy E. Lane

In April, the Equal Employment Opportunity Commission (“EEOC”) advised that employers can require employees to submit to a viral test to see if they have a current COVID-19 infection (see A.6). However, COVID-19 viral testing and antibody testing are not the same.

As the Centers for Disease Control & Prevention (“CDC”) has explained, a viral test “tells you if you have a current infection,” while an “antibody test tells you if you had a previous infection.”

In contrast with its position on viral testing for current infection, the EEOC issued additional guidance yesterday prohibiting employers from requiring employees to submit to antibody testing before returning to work (see A.7 of the EEOC FAQ’s). The EEOC’s guidance aligns with recent guidance by the CDC which explicitly states that “Antibody test results should not be used to determine if someone can return to work.”

Because the CDC’s guidelines for addressing COVID-19 are subject to frequent change and updates, the EEOC notes that it “will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.” We will also continue to regularly monitor CDC and EEOC guideline updates and inform you of any changes. The members of our Employment Department are available to answer any questions that you may have.