July 8, 2020

Volume X, Number 190

July 07, 2020

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July 06, 2020

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CDC Issues Guidance Warning Against Use of Antibody Testing in Making Decisions Regarding Returning Employees to the Workplace

The CDC has issued interim guidance on antibody testing for the SARS-CoV-2 coronavirus that causes COVID-19. While the guidance is primarily directed at clinical and public health entities, it does contain some information relevant to employers, educational institutions, and other entities who may be considering whether and to what extent such antibody testing may play a role in its reopening plans.

Specifically, the guidance states that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable antibody testing method “likely indicates at least some degree of immunity, until the durability and duration of immunity is established, it cannot be assumed that individuals with truly positive antibody test results are protected from future infection.”

As such, the CDC states that, at this time, antibody testing:

  • should not be used to make decisions about returning persons to the workplace; and
  • should not be used to make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.

The guidance further states that “additional data are needed before modifying public health recommendations based on [antibody] test results, including decisions on discontinuing physical distancing and using personal protective equipment.”

It is worth noting that the EEOC has issued guidance (discussed in more detail in our blog here) confirming that, for the duration of the direct threat posed by the coronavirus pandemic, employers may administer COVID-19 diagnostic tests to employees before they are permitted to enter the workplace. Before doing so, the EEOC encourages employers to consult guidance from the CDC, FDA, and other public health authorities to ensure any tests they administer are accurate, reliable, and that the employer understands the likelihood of false-positives or negatives associated with the tests. The EEOC’s guidance does not directly address the use of antibody testing, but it does state that any employer-mandated testing should be reliable and accurate. In light of the CDC’s current guidance, employers considering requiring antibody testing should seek counsel and continue to monitor the EEOC and CDC websites for guidance.

As antibody testing and its capability to determine potential immunity to COVID-19 continues to be studied, we will be closely monitoring the latest information from the CDC and other public health entities on this topic.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 149

TRENDING LEGAL ANALYSIS


About this Author

Harris M Mufson, Class/Collective Action Attorney, Proskauer
Senior Counsel

Harris Mufson is a senior associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Whistleblowing & Retaliation Groups.

Adept at counseling clients at every turn of the litigation process, Harris represents employers in a variety of industries, including financial services, health care, entertainment, sports and legal, with respect to a wide range of labor and employment law matters. These include compensation disputes, employment discrimination and retaliation, whistleblowing,...

212-969-3794
Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in financial services (including hedge funds and private equity firms), professional sports, media, retail, law firms, higher education, social service providers and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

212.969.3132
Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm
Associate

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour...

212-969-3631