“Heard” Immunity: The Value of Updating Workplace Testing Policies in Advance of the COVID-19 Reboot

By: Attorney Bryan T. Symes – Weld Riley, S.C.

By now, most people have developed at least a surface-level understanding of the herd immunity, or herd protection, epidemiological concept.   Herd immunity describes a scenario in which enough people within a community are immune to COVID-19, such that the remaining individuals who are not immune are sufficiently protected from infection—i.e., the risk of infection becomes politically palatable.   The concept of herd immunity is not without controversy—and this post is not an endorsement of herd immunity.    No, instead, this post is about something altogether different—heard immunity.  Intrigued?  If so, keep reading.

Against the backdrop of news reports suggesting higher than initially anticipated immunity rates [in other words, people catching and transmitting COVID-19 without significant health consequences], the absence of a vaccine, and the recent swell of public opposition to shelter-in-place mandates, the promise of rapid antibody/serology testing is viewed as one possible means to the collectively desired end—getting back to work.  Advocates of rapid antibody/serology testing envision an environment in which employers are able to strategically make workplace-specific determinations about how best to stage employee reintegration [believe it or not, there’s an app for that—Bizagi, a UK-based tech company, recently launched its “CoronaPass” app, which uses an encrypted database to store information about a user’s immunity status, based upon antibody/serology testing].

Recently, the EEOC has again updated its guidance document concerning employee/applicant testing [available here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=], signaling to the regulated community that COVID-19 return-to-work testing of employees is lawful under certain circumstances.   To date, the EEOC has addressed the issue of measuring an employee’s body temperature, but has not taken a position concerning the acceptability of rapid antibody/serology testing.   The EEOC’s reticence, of course, is understandable given the uncertain reliability of such testing methods.  However, assuming rapid antibody/serology testing emerges at some point as a viable tool to facilitate a quicker economic rebound, forward-thinking employers will consider updating employee testing policies now.

It is safe to assume that rapid antibody/serology testing will, like many other methods of employee testing before it (workplace drug and alcohol testing immediately comes to mind), give rise to various employee “privacy” claims.   History teaches us that the most effective defense to these type of testing-related privacy claims may be advance employee notice—i.e., heard immunity.  For this reason, in anticipation of the viability of rapid antibody/serology testing, it makes sense for employers to prepare “in the queue,” updated workplace testing polices designed to notify employees that rapid antibody/serology testing may be required as a condition of employment.   Employers should be prepared to roll out these policies if the EEOC endorses rapid antibody/serology testing in advance of the anticipated economic reboot.   Preparing in advance will ensure sufficient time to obtain written employee consent prior to conducting return-to-work tests.

We will continue to monitor the viability of rapid antibody/serology testing, corresponding EEOC guidance, and potential legal challenges.  Stay tuned!