Coronavirus antibody tests cannot be required, according to new EEOC guidance

The Equal Employment Opportunity Commission (EEOC) updated its coronavirus guidance on June 16, 2020, to state that employers cannot require COVID-19 antibody testing before employees return to work (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-lawson). The guidance echoes advice from the Centers for Disease Control and Prevention (CDC) that "employers should not use antibody tests to make decisions about returning persons to the workplace."

The agency also emphasized that despite the CDC's guidance that people older than 65 are at higher risk for a severe case of COVID-19, employers cannot involuntarily exclude employees from the workplace because they are 65 or older, even in an attempt to protect them. In a similar vein, employers cannot "single out workers on the basis of pregnancy for adverse employment actions."

According to the EEOC, employers do not have an obligation under the Age Discrimination in Employment Act to provide older workers reasonable accommodations based on their age, although pregnant women may be entitled to reasonable accommodations for pregnancy-related medical conditions under the Americans with Disabilities Act (ADA). The agency points out that employers should notify employees how to request an accommodation or flexibility in returning to the workplace.