What Do Employers Need to Know About Antibody Testing?

In recent days, as states have begun to announce certain aspects of their reopening plans, there has been significant discussion among employers and the public at large about antibody testing.  Widespread and effective antibody testing, also known as serology testing, has been viewed as a key to lifting restrictions, as such testing identifies whether an individual has had COVID-19 (i.e., whether the individual has antibodies to the virus).  This information is particularly helpful given the lack of diagnostic testing, which identifies whether an individual actively has COVID-19.  Before employers implement antibody testing of their employees, there are legal and practical issues that must be considered.

Like pre-shift temperature testing, an employer can require employees to undergo antibody testing even though such testing would not normally be permitted.  Under the Americans With Disabilities Act (“ADA”), employers are generally prohibited from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if they are necessary to exclude employees with a medical condition that would pose a “direct threat” to health or safety.  A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The U.S. Equal Employment Opportunity Commission has stated that employers may take steps to determine if employees entering the workplace have COVID-19, including testing to determine if employees have the virus, because an individual with COVID-19 poses a direct threat to the health of others.  Therefore, antibody testing would be legally permissible.

But how accurate and informative are antibody tests?  Health officials have cautioned that, based on current data, a positive antibody test does not necessarily mean that an individual is immune to COVID-19 or protected from becoming infected a second time.  In addition, many antibody tests, many of which have not been reviewed by the Food and Drug Administration (“FDA”), have had issues with high rates of false positives (i.e., indicating that an individual has had COVID-19 when he/she has not).  To this end, the EEOC has cautioned that employers must ensure that COVID-19 tests are “accurate and reliable” and consider the incidence of false-positives or false-negatives associated with the test.

Ultimately, the question facing employers is not whether they can administer antibody testing, but instead whether they should.  Although such testing may turn out to be the “game changer” or “silver bullet” that many have hoped for, it may not be there yet.  For questions about this or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.