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Covid-19 Immunity Tests Are Dangerous Territory for Employers

June 19, 2020, 10:01 AM

Employers weighing whether to require Covid-19 antibody tests as part of their return-to-work plans received a powerful warning from the EEOC that the newly developed tests could give rise to a novel form of discrimination—reinforcing the counsel of a growing body of lawyers and civil rights advocates.

The Equal Employment Opportunity Commission advised that at this point antibody tests violate prohibitions on medical testing under the Americans with Disabilities Act, the central federal law preventing discrimination based on disability. The agency aligned its guidance with that of the Centers for Disease Control and Prevention, which said the testing methods can be unreliable, need more research, and shouldn’t be used to decide whether to bring workers back to the workplace.

“Companies want to do whatever they can to create the safest workplace they can envision and as liability-free a workplace they can envision,” said Hope Goldstein, employment attorney with Bryan Cave Leighton Paisner in in New York. “The key with [viral] testing is that it can prevent a direct threat in the workplace. Immunity testing wouldn’t do that. It wouldn’t identify someone bringing harm into the workplace; it would do the opposite of that.”

Conferring privileges on a group of workers because they possess antibodies could lead companies into a legally questionable area and trigger disability bias cases from those who find that their ability to stay virus-free is suddenly a disadvantage at work, several lawyers, academics, and civil rights advocates told Bloomberg Law. Widespread employer use of antibody testing also could create a perverse incentive to contract Covid-19 for those who are economically insecure, as was the case during the U.S. outbreak of yellow fever. And that could disproportionately affect people of color.

Walmart Inc., the nation’s largest employer, previously said it would consider antibody testing as a long-term solution, on top of a diagnostic test for infection. It didn’t immediately respond to a request for comment on the EEOC’s advice.

Many other companies have checked in with lawyers or the EEOC about using the technology as a secondary method to ensure a healthy workplace. Germany, Chile, and the United Kingdom have even suggested creating “immunity passports” that would allow people with antibodies to the virus to go back to work faster.

But relying on immunity testing in the workplace could hurt those with underlying health conditions that put them at greater risk of developing a more severe case of Covid-19, or older workers who are more susceptible to infection, lawyers and civil rights advocates say.

“Imagine the science fiction books you’ve read or movies you’ve seen—those could be reality,” said Michael Sheehan, partner with McDermott Will & Emery in Chicago. “What decisions will be made? Will they categorize people based on the medical data and immunity passports? Will they make hiring and job assignment decisions based on who has the passport? That’s all ripe and fraught with age, disability discrimination. You name it.”

Legal Questions

The EEOC previously cleared employers to conduct temperature checks on workers because the “direct threat” Covid-19 poses meets the ADA’s requirement that workplace medical tests be “job related and consistent with business necessity.” But its latest guidance, issued Wednesday, said antibody tests don’t meet that bar because the CDC had earlier advised that such examinations “should not be used to make decisions about returning persons to the workplace.”

The EEOC’s guidance isn’t binding, and the agency said it could update it depending on moves by the CDC. But right now, if an employer requires antibody testing and a worker sues in court, the guidance could be wielded against the company, Goldstein said.

She added she wouldn’t advise companies to use antibody test results to make hiring or firing decisions because it would essentially separate supposedly immune workers from those who are not.

The civil rights agency relied on the CDC’s concerns about the accuracy of antibody tests and uncertainty about the extent of immunity conferred by the presence of antibodies, said Debbie Kaminer, law professor at the City University of New York.

The CDC’s guidance said “definitive data are lacking, and it remains uncertain whether individuals with antibodies (neutralizing or total) are protected against reinfection with SARS-CoV-2, and if so, what concentration of antibodies is needed to confer protection.”

Some argue antibody testing could make workplaces less safe because of the unknowns surrounding the novel coronavirus and immunity to it.

“Since so much remains unknown about the virus, the use of immunity passports could lull a workplace into an unjustified sense of security that it need not implement appropriate protocols against transmission of Covid-19,” the American Civil Liberties Union said in a white paper warning companies not to adopt such measures.

The paper’s authors contend that an immunity passport system would divide workers into two classes, with workers who have had the virus receiving preferential treatment.

In effect, Goldstein said, an argument could be made that the lack of infection becomes a disability under the ADA and creates “a category of disability” based on the lack of antibodies.

Still, some lawyers and academics are skeptical that workers could overcome hurdles in bringing discrimination claims based on alleged immunity bias. The ADA protects workers with disabilities, but courts may not view immunity itself as being protected.

“You’d either have to say having immunity is a disability or not having immunity is a disability,” said Karla Grossenbacher, an employment attorney for Seyfarth Shaw in Washington. Both would be difficult standards to meet, she said. If an employer imposed a strict rule that barred people without antibodies from returning to the workplace, that could be problematic, she added.

Kaminer, the CUNY professor, compared the potential for immunity-based discrimination to lawsuits occasioned by mandatory immunization laws for health-care workers and mandatory retirement laws for pilots.

Lessons From History

The authors of the ACLU paper—Esha Bhandari, a senior staff attorney, and ReNika Moore, director of the racial justice program—noted that racial disparities are already evident in the disproportionately high rates of Covid-19 infection among Black and Latino workers.

The idea of an immunity passport could lead to workers in low-income jobs exposing themselves to infection, they wrote, exacerbating the existing racial inequities. Many of the industries deemed essential rely heavily on immigrants, workers of color, and women.

“It is foreseeable, maybe even inevitable, that an immunity passport system, with all its attendant pressures on workers to acquire immunity, would result in disproportionately more illness and death among people of color in the U.S,” they wrote. “It would disproportionately harm all workers who have disabilities that put them at greater risk of severe illness or death from COVID-19.”

History provides a glimpse of how immunity discrimination could play out. In the 18th and 19th centuries, yellow fever caused similar alarm in the U.S. as it spread through the humid climate of the South. During that time, science was manipulated to perpetuate racial inequality and justify slavery, with immunity status being recognized along racial lines, said Kathryn Olivarius, assistant history professor at Stanford University.

Now, because low-income workers are more likely to have to choose between keeping their jobs and safeguarding their health, there is risk that “immuno-privilege” could mix with other forms of bias linked to racism, xenophobia, and geography.

“That could have massive public health implications if we get it wrong and bring pain and suffering to a lot of communities,” Olivarius said. “What happens is a large corporation says, ‘We don’t want to take on the liability, so if you want to keep your job, you have to have antibodies.’ That’s a Wild West dystopia.”

“There’s a razor’s edge between stigmatization and what’s positive for society,” she added.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; John Lauinger at jlauinger@bloomberglaw.com

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