As the COVID-19 pandemic continues, employers are among the many groups of people facing new challenges. Against the Equal Employment Opportunity Commission’s (“EEOC”) discouragement, many employers have utilized antibody testing to avoid liability as their employees return to work. (Mulvaney, Bloomberg). The EEOC and several other agencies state that antibody testing might have an unintended discriminatory impact on several groups of employees. (Mulvaney, Bloomberg). These concerns raise issues that employers need to consider in the midst of today’s volatile work world: is antibody testing a satisfactory way to screen employees before allowing them into a workplace? If not, how should employers provide a safe workplace?

According to the Centers for Disease Control and Prevention (“CDC”), antibody tests are currently the best way of measuring a person’s ability to fight the virus. (CDC). Generally, antibodies can immunize a person from a virus and prevent reinfection, but there is not enough information to know how protective antibodies are against COVID-19. (CDC). The CDC has also stated that antibody testing should not be used to determine if somebody can return to work. (CDC). Nonetheless, many employers have used antibody tests to bestow employees with “immunity passports.” (Bhandari, ACLU). This title has been used in contexts where employers use antibody testing, because the test results determine whether or not an employee can enter the workplace.

The American Civil Liberties Union (“ACLU”) and several other organizations have published articles discouraging antibody testing in an effort to stop employers from relying on immunity passports. While highlighting the disadvantages of an immunity passport system, a recent ACLU paper discusses the nature of antibodies, an overlooked aspect of the system. (Bhandari, ACLU). The paper points out that if antibody testing determines an employee’s ability to return to work, then only workers who have contracted COVID-19 will be eligible for employment. (Bhandari, ACLU). This has the dually disparate impact of preventing healthy individuals from finding work and lulling employers into an unjustified sense of security. The use of antibody tests for employment eligibility has been deemed a violation of the Americans with Disabilities Act (“ADA”) and several national organizations are attempting to eradicate this practice. (Bhandari, ACLU).

Rather than employing people who have tested positive for antibodies, many employers and organizations are taking precautionary measures and continuously monitoring their surroundings to help keep COVID-19 out of the workplace. An absence of federal guidelines has largely allowed employers to choose between the reactive antibody testing option and the alternative precautionary option. However, Virginia became the first state to introduce emergency workplace measures in an executive order issued by Governor Ralph Northam on May 26. (Clair, Lexology).

Virginia’s emergency workplace measures took immediate effect on July 27 and put Virginia at the forefront of U.S. employment regulations during the pandemic. (Clair, Lexology). Governor Northam’s executive order sets out obligations regarding flexible sick leave policies, promotes social distancing, seeks effective ways to identify workers who may have been exposed to COVID-19, and sets the guidelines to determine when workers known or suspected to have had COVID-19 may return to the workplace. (Brenner, Law and the Workplace). Virginia’s state-mandated regulations could set the precedent for employers upon being utilized in the upcoming weeks. Unlike antibody testing, the system created by Governor Northam’s executive order is in line with the CDC’s recommendations, and it complies with the ADA.

By mandating emergency workplace measures, Virginia has provided guidance to help employers attempt to maintain safe work environments. It will be interesting to see whether Governor Northam’s leadership will pave the way for employers to safely navigate their way into a stable, healthy work environment. Since the effective date of Virginia’s executive order, thirteen other states have adopted comprehensive COVID-19 worker safety protections. (Berkowitz, NELP). This widespread adoption shows a trend of state leadership occurring in the absence of federal guidelines.