In general, the EEOC has okayed mandatory COVID-19 testing but not antibody testing. However, even voluntary antibody testing raises a host of legal issues: (1) adequate and documented consent; (2) “voluntary” consent (no negative employment actions for choosing not to be tested); (3) retention and confidentiality of results; (4) potential liability for inaccurate results; (5) opening up the possibility for EEs to later claim they were treated differently with respect to their terms/conditions of employment due to testing results and/or disability discrimination; etc.
The CDC does not currently recommend using antibody testing as the sole basis for diagnostic testing and antibody tests are not authorized by the FDA for determining active infection.
Except in rare situations, a test-based strategy is no longer recommended by the CDC to determine when an individual with COVID-19 is no longer infectious.
Antibodies are most commonly detectable one to three weeks after symptom onset, at which time infectiousness has likely decreased greatly and some degree of immunity has developed.
As always, caution needs to be exercised when requiring medical screenings for employees. Curi has developed a consent/waiver for employers to use for helping to explain the purpose and limitations of diagnostic and antibody testing.
Click here to read more on the topic of mandatory COVID-19 testing by employers.