The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on April 23, 2020 that employers can test employees for COVID-19 before entering the workplace, but there is no specific mention of whether employers can require employees to take an antibody test.
The EEOC found because COVID-19 is a “direct threat to the health of others,” employers could test employees “to determine if they have the virus.” This same reasoning would also seem to apply to antibody tests.
The EEOC, however, cautions employers to “ensure that the tests are accurate and reliable,” and should “consider the incidence of false-positives or false-negatives associated with a particular test.” The EEOC recommended employers review guidance from the Food and Drug Administration (“FDA”) about what may or may not be considered safe and accurate testing, as well as guidance from the Centers for Disease Control and Prevention (“CDC”) and other public health authorities.
An April 24, 2020 New York Times article, “Coronavirus Antibody Tests: Can You Trust the Results?” discussed major reliability issues with the antibody tests currently available. Scientists confirmed of the fourteen coronavirus antibody tests now on the market, only three delivered consistently reliable results – and even they had flaws.
People are scrambling to take antibody tests, hoping to learn whether they might be immune to the virus and can return to their work and lives. However, this means nothing if the test results can’t be trusted. Researchers found only one of the fourteen tests never delivered a “false-positive” – meaning the tests detected antibodies in people who didn’t have them. And even the top three tests only detected antibodies in infected people about 90 percent of the time at best.
Scientists have warned false-positives are particularly dangerous when making decisions about who can go back to work. The results may lead people to believe they are immune to the virus when they are not and put themselves in danger by abandoning social distancing and other protective measures. The proportion of people who have been exposed to the coronavirus is likely to be 5 percent or less, according to Dr. Scott Hensely, a microbiologist at the University of Pittsburgh.
The bottom line: While antibody tests may eventually be invaluable in allowing employees to get back to work safely, unfortunately most, if not all of them, are not sufficiently accurate or reliable at this point. While employers likely can require employees to take an accurate antibody test for the time being, they should rely on measures other than antibody testing to keep their employees safe.
Is Your Employer Failing to Keep You Safe?
Your employer has a duty to provide a safe and sanitary work environment. If your employer fails to maintain a clean work environment or provide necessary personal protective equipment (PPE) such as masks and gloves to reduce your exposure to COVID-19 while at work, they may be violating your employment rights.
Haeggquist & Eck, LLP can advocate for you. As a nationally renowned employment and consumer law firm, we stand up for those whose rights have been violated by their employers. We offer a free consultation for each client to learn more about how they may have a valid claim and how to take steps forward toward pursuing fair and just compensation.
Call (619) 468-5222 or contact Haeggquist & Eck, LLP online to learn more about how we can help you.