Are Immune Workers Key to Reopening the Economy?

Nancy Cleeland By Nancy Cleeland April 23, 2020
doctor tests patient for covid 19

​Editor's note: The Equal Employment Opportunity Commission on June 17 said employers cannot require antibody testing before employees return to work. 

It's an idea with near-irresistible appeal: Reopen the economy with a corps of workers who have acquired immunity to the coronavirus. As research continues for a vaccine or effective treatment, the formerly sick can safely do the jobs that vulnerable populations cannot.

This week, the country of Chile said it would start issuing "immunity passports" for that purpose. Italy, Spain and Britain have floated similar ideas. Even Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a prominent member of the White House Coronavirus Task Force, said immunity certificates were under discussion, and it was "possible" that the U.S. would eventually give them to key frontline workers.

But on closer look, the concept of immunity-based employment gets messy—logistically, legally and culturally.

"It just strikes a weird note," said Mike Correll, a partner in Reed Smith's Labor & Employment group in Dallas, after running through a half dozen things that could go wrong. "I wouldn't be surprised if it gets bogged down in the details, and that's probably exactly what should happen."

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Coronavirus and COVID-19

The Science Is Unclear

For starters, the science isn't there yet: Serological tests can detect COVID-19 antibodies in a person's blood, but it's not clear that means they are protected from reinfection or for how long. Conjecture so far is based on how other related viruses work.

In addition, most of the dozens of serological tests that are now commercially available haven't yet been approved by the Food and Drug Administration, and the agency warned some may be unreliable or fraudulent.

Even if the science were perfect, the practice of hiring someone based on the person having had a disease would be fraught. Among the laws implicated: the Americans with Disabilities Act (ADA) and privacy rules under the Health Insurance Portability and Accountability Act (HIPAA). Plus, the logistics for getting and storing the immunity information are unclear. Who would issue the certificates? How would the files be maintained? Is there a built-in period for renewal, given that the antibodies might expire?

"To me, it just opens a Pandora's box of issues and concerns," said Savera Sandhu, a partner at Newmeyer Dillion based in Las Vegas who specializes in health care. "I think it would create more problems than it would solve."

Sandhu said relying on immunity certificates to hire or bring workers back would only make sense if the Department of Health and Human Services (HHS), which enforces HIPAA, developed guidelines and offered blanket waivers to employers for collecting and storing the information. A recent HHS bulletin on exceptions to privacy rules doesn't go far enough, she said.

So Many Possible Pitfalls

And HIPAA rules are only part of the conundrum. Consider these possible scenarios:

  • A company must reopen without its best workers because they haven't gotten sick yet.
  • People intentionally expose themselves to the virus so they can return to work.
  • Counterfeit immunity certificates and test results flood the marketplace.
  • Immune workers start to lose their immunity over time, potentially getting sick and spreading the virus again.
  • A pattern of disparate treatment emerges because some demographic types are more likely to recover from the disease than others.
  • Rejected applicants who are healthy allege discrimination because having a past disease is a work requirement.

David Miller, a labor and employment attorney with Bryant Miller Olive in Florida, said it would be "chancy at best" to base hiring decisions on acquired immunity. "What can an employer ask? The ADA frowns on inquiring directly about diagnoses, so 'Do you or have you had COVID-19?' is a risky question."

Miller said a safer approach might be to ask about the employee's ability to do the job without creating a direct threat to self or others. But he added, "In my opinion, no one has sufficient understanding of the virulence of COVID-19 to make such analysis much more than a guess. And when you're guessing, you should take the most conservative position."

Finally, the idea of workers carrying immunity certificates goes against some strong cultural currents, several attorneys noted.  "Look at the history of the national ID card debate in the U.S.," Correll said. "That has always been a third rail. Now all of the sudden it's in vogue? It's antithetical to how America operates."

Sandhu echoed that thought. "It goes back to 'work papers,'" she said. "I don't think that's our society or our economy anymore."

Large-Scale Testing May Be More Helpful

Testing for antibodies may still be key to opening the economy, just not through individual certificates. Instead, infectious disease experts say, widespread testing can give a sense of how deeply the coronavirus has penetrated the overall population. This is important because COVID-19 cases are sometimes asymptomatic or mild, and people may have acquired antibodies without even knowing it.

"As we look forward, as we get to the point of at least considering opening up…it's important to understand how it's penetrated society," Fauci said. "That will determine what kinds of strategies we can follow."

To that end, several "serosurveys" are already in process. The National Institutes of Health (NIH) recently launched an initiative to collect and analyze blood samples from 10,000 volunteers with no known history of COVID-19. The volunteers would use an at-home test and mail it back to the NIH for analysis. The Centers for Disease Control and Prevention (CDC) has started testing batches of samples collected from the state of Washington and New York City and will expand to include serologic testing in more areas with high numbers of people with diagnosed infections. It will also include studies of households in some states.

On a local level, the University of California, San Francisco is conducting large-scale testing in two separate population—the small coastal town of Bolinas and the densely populated Mission District in San Francisco—to understand the spread there. "Studying in detail how the virus has spread in these two distinctive communities will give us crucial data points that we can extrapolate to better predict how to control the virus in similar communities nationwide," said Bryan Greenhouse, an associate professor of medicine at the university who is participating in the survey. 

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