The CDC has issued interim guidance on antibody testing for the SARS-CoV-2 coronavirus that causes COVID-19. While the guidance is primarily directed at clinical and public health entities, it does contain some information relevant to employers, educational institutions, and other entities who may be considering whether and to what extent such antibody testing may play a role in its reopening plans.

Specifically, the guidance states that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable antibody testing method “likely indicates at least some degree of immunity, until the durability and duration of immunity is established, it cannot be assumed that individuals with truly positive antibody test results are protected from future infection.”

As such, the CDC states that, at this time, antibody testing:

  • should not be used to make decisions about returning persons to the workplace; and
  • should not be used to make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities.

The guidance further states that “additional data are needed before modifying public health recommendations based on [antibody] test results, including decisions on discontinuing physical distancing and using personal protective equipment.”

It is worth noting that the EEOC has issued guidance (discussed in more detail in our blog here) confirming that, for the duration of the direct threat posed by the coronavirus pandemic, employers may administer COVID-19 diagnostic tests to employees before they are permitted to enter the workplace. Before doing so, the EEOC encourages employers to consult guidance from the CDC, FDA, and other public health ities to ensure any tests they administer are accurate, reliable, and that the employer understands the likelihood of false-positives or negatives associated with the tests. The EEOC’s guidance does not directly address the use of antibody testing, but it does state that any employer-mandated testing should be reliable and accurate. In light of the CDC’s current guidance, employers considering requiring antibody testing should seek counsel and continue to monitor the EEOC and CDC websites for guidance.

As antibody testing and its capability to determine potential immunity to COVID-19 continues to be studied, we will be closely monitoring the latest information from the CDC and other public health entities on this topic.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.