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Areas of Interest
June 23rd, 2020
Reopening: Can an Employer Require Antibody Testing For Returning Employees?
Last week, the EEOC updated its COVID-19-related guidance for employers, titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. In general, this EEOC resource contains important guidance to help employers implement strategies to navigate the impact of COVID-19 in the workplace. In the most recent update, the EEOC answered the question: Under the Americans with Disabilities Act (ADA), may an employer require antibody testing before permitting employers to re-enter the workplace?
The EEOC’s answer is “no.” Pointing to recent guidelines from the U.S. Centers for Disease Control (CDC) that antibody test results “should not be used to make decisions about returning persons to the workplace,” the EEOC has determined that antibody tests do not meet the ADA’s standard for medical examinations or inquiries of current employees, which is that the test be “job related and consistent with business necessity.” “Therefore,” says the EEOC, “requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.”
The guidance is unsurprising given the limited value of COVID-19 antibody tests for employers. Antibody tests indicate that an individual has battled the virus at some undetermined point; however, the tests do not allow employers to conclusively determine whether a returning employee is actively infected with the virus. The EEOC’s clarification that such testing does not satisfy ADA requirements, therefore, is an important reminder to employers to base their determinations of who returns to work on information pertinent to an employee’s current COVID-19 status.
If you have questions about the new EEOC guidance on antibody testing, or about other employment law matters, contact Wendy Stryker at (212) 705 4838 or wstryker@fkks.com, Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.
Other Employment Law Alerts
FTC Bans Certain Non-Compete Agreements
The Federal Trade Commission (FTC) has approved a new Rule which bans for-profit employers from entering into post-employment, non-compete agreements with employees. By a vote of 3 to 2 the FTC determined that these non-compete agreements constitute “unfair competition” under the FTC Act. The Rule is effective 120 days after it is published in the Federal Register. Here’s what employers and executives need to know. Read more.
April 26 2024
New Ruling from the National Labor Relations Board May Require Significant Handbook Revisions
On August 2, the National Labor Relations Board issued a decision, Stericycle Inc. and Teamsters Local 628, that creates a new legal standard for how the NLRB will evaluate workplace rules and policies to determine if such rules interfere with employees’ protected rights to engage in concerted workplace activity under Section 7 of the National Labor Relations Act. Read more.
August 8 2023
New York Releases New Changes to its Model Sexual Harassment Policy and Training Video
On April 11, 2023, the New York State Department of Labor released updated versions of its sexual harassment model policy and training materials. Read more.
April 17 2023
