Gretchen Harders Quoted in “Making Antibody Tests Optional Won’t Erase Legal Risks”

Law360

Gretchen Harders, Member of the Firm in the Employee Benefits practice, in the firm’s New York office, was quoted in Law360, in “Making Antibody Tests Optional Won’t Erase Legal Risks,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

Although the U.S. Equal Employment Opportunity Commission’s recent edict that businesses can’t force returning employees to take COVID-19 antibody tests doesn’t preclude employers from asking workers to take tests voluntarily, companies risk legal trouble if antibody detection is part of their reopening plan, experts say.

The EEOC issued updated guidance June 17 telling employers that they’ll be in violation of the Americans with Disabilities Act if they require employees to take antibody or serology tests, which determine whether a person ever had COVID-19 and built up antibodies to the disease even if they were asymptomatic.

However, that guidance doesn’t explicitly say that employers couldn’t make the tests available on a voluntary basis for workers who want them. Nor does it prevent businesses from asking workers to share their results since the information could, in theory, help them get a sense of how widespread the virus has been within their ranks. That approach, however, comes with significant legal risk since the Centers for Disease Control and Prevention, which the EEOC cited in its guidance, has said the serology tests have numerous limitations, attorneys say. …

Potential for Bias

As antibody tests have slowly come online over the past few months, employment law observers eagerly anticipated direction from the EEOC about the legality of those tests.

The EEOC’s June 17 directive referenced earlier CDC guidance that said antibody tests shouldn’t be used to determine if someone is immune to the virus or as a basis for decisions about allowing workers back on the job. More specifically, the EEOC said that antibody tests amount to the sort of medical examination that is prohibited under the ADA unless it is “job related and consistent with business necessity.”

Gretchen Harders, a member in Epstein Becker Green’s employee benefits and executive compensation practice, said antibody tests could offer certain benefits. For example, the availability of optional antibody tests could give workers some “peace of mind” of knowing whether they have been exposed to the virus, even if the science regarding immunity isn’t in yet. But for the most part, the utility of the results is sketchy and there “could be a risk of a discrimination claim” if the information is used in a way the EEOC warns would be illegal, she said. 

“It doesn’t hurt to offer it, but I’m not sure that necessarily there’s a good use for that information at the moment,” Harders said. “There’s this idea that employers want to take steps to make employees comfortable in the workplace and to show they’re [making] efforts to mitigate risks, but I’m not sure how useful [antibody tests] are going to be for things like contact tracing.”

Voluntary in Name Only

If a business does give workers access to voluntary serology tests, it must then decide if they’ll be provided through an employee assistance program or a group health plan and who will cover the cost of taking them, Harders said. 

She pointed out that such tests usually involve bloodwork and would have to be done by a health care provider, laboratory or a person licensed to do the test.

If the test is paid for under a group health plan, Harders said it is covered by the Health Insurance Portability and Accountability Act, meaning that the employee “has to consent to whether that information goes to the employer.”

“I think that’s going to be the tricky issue,” she said. “You can make it available, but is the employee going to consent to that information, whether they tested positive or not, to go to the employer?”