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Fighting the Pandemic: Serological Testing For Essential Employees

Unprecedented. This is the most fitting term that can be used to describe what the world is experiencing due to the Covid-19 pandemic. As we sit in our homes doing anything we can come up with to keep cabin fever at bay, we stay glued to the most recent updates hoping for some glimmer of light at the end of the tunnel. That light may be starting to shine in the form of what is called a serological test.

This is a test that measures the amount of antibodies present in a patient’s blood when the body is responding to an infection like COVID-19. The test detects a body’s immune response to the infection caused by the virus rather than detecting the virus itself. According to the FDA, “serological tests can play a critical role in the fight against COVID-19 by helping healthcare professionals to identify individuals who have overcome an infection in the past and have developed an immune response.”

The good news for essential businesses and local governments around the country is that these tests will provide the ability to determine whether certain essential employees have developed an immunity to Covid-19. This information would be crucial to the first responders who are on the front lines of the fight against this pandemic. However, there are many legal issues that must be considered before an essential business or local government asks their employees to submit to serological testing.

First, it’s important to keep in mind that there are still a lot of unknown factors concerning Covid-19 and its effect on the human body. Unfortunately, a common theme I have come across in all of my research is that even though someone has developed antibodies and is potentially immune to the virus, the degree and duration of that immunity is currently unknown. This could be a potential issue for an employer if an employee who is declared to be immune later contracts the virus after being sent to a hot zone. That employee might then file suit claiming the employer convinced them they were safe when they in fact weren’t.

Second, an employer would want to avoid the appearance of discriminating against employees who have had the virus and recovered, versus those who haven’t. One simple way to avoid this is to make the program voluntary. In order to do this, the employer will need to take all steps available to ensure that employees being tested for the antibody are informed in as much detail as possible that a positive result would mean they would be the person tasked with going to any potential hot zones. They need to be made aware, with no room for interpretation, that volunteering for the serological test means volunteering to go where others will be able to choose not to go. Another layer of protection would be to have the employee sign a release before taking the test and being exposed to potential hot zones.

However, just because a program suggested by an employer is labeled as voluntary does not necessarily mean that a judge in a court of law will agree. A judge could easily construe a voluntary program to be, in reality, a requirement depending on how the program’s parameters are set. The employer will need to be as detailed as possible about the voluntary nature of this testing and what a positive result could mean for the employee.

Lastly, there has been some relaxation in the HIPAA (Health Insurance Portability and Accountability Act) privacy rules due to the Covid-19 pandemic, but employers still need to be aware of the confidentiality rights of the persons being tested. For example, the fact that a person is tested may not be confidential, but in most circumstances the results of that test most likely are. However, Chapter 81 of the Texas Health and Safety Code contains exceptions for releasing public health information to certain individuals, like public health officials and first responders. The employer will need to make sure nothing concerning the results of a test are shared with any unauthorized entities or individuals.

As, serological testing is becoming more and more popular as a tool for combating the spread of Covid-19, local governments all over the country are beginning to use these blood tests to determine who is and isn’t immune to the virus and the results seem promising so far. However, we must all keep in mind that this pandemic is unprecedented and constantly changing, and a lot of unknowns still exist concerning human immunity to Covid-19.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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