Difficult Realities Related to Antibody Testing as a Tool in COVID-19 Recovery

May 6, 2020

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In the 1980s as the AIDS epidemic took root in America, there was no test for Human Immunodeficiency Virus (HIV), the cause of Acquired Immune Deficiency Syndrome (AIDS). Rather, once developed, the HIV-antibody test was used as a surrogate marker to identify the infected. Particularly before there was a treatment, an antibody test became a marker for discrimination, resulting in lawsuits. As a disability, it became illegal to discriminate against a person with AIDS and an HIV-antibody test under most circumstances could not be compelled.

In the COVID-19 America of 2020, an antibody test – this time to assess exposure to Sars-COV-2 – is being contemplated as a tool in the toolbox of those planning return to work scenarios and the notion of “immunity passports” has been reported by the media to be under consideration by some policymakers in Europe and by some employers in the U.S. The notion raises legal, communications and public health implications that loom large.

  • What is the practical value of the test? One of the foremost considerations in using an antibody test is a practical one. What does a positive test result tell us? Whether or not the development of an antibody confers immunity on the part of the person tested is not clear. If there is immunity as a result, it does not tell us how long that immunity may last or whether all people who develop an antibody have an equal amount of protection or whether it depends on the level of the individual’s exposure.
  • What are the legal implications? Can an employer compel an employee to take a test as a pre-condition to coming to work? And is there a health privacy consideration, either at a federal or state level, at stake in freely identifying – or compelling those who test positive – to publicly identify their antibody status. Can an employee demand antibody tests of co-workers? Can access to a doctor’s office or daycare center be premised on antibody status? Can a person’s livelihood or access to services or other venues be put on the line based on an antibody test?
  • Is there a public health concern? Use of an antibody test as a “passport” to employment, to access to services, or to attend a theatre or sports event puts a premium on being antibody positive (the exact opposite of the HIV/AIDS days). Does this possibly mean that there will be people who purposely expose themselves to the virus in order to get their passport? It may sound farfetched. It isn’t.

Finally, there is the communications lift that is associated with explaining all the nuance associated with this. Use of the antibody test as a tool at first glance sounds easy and neat. It is hard and it is messy.

At this stage of the COVID-19 pandemic, there are two tectonic plates pushing up against one another. One represents the enormous pressure to return to some state of economic normalcy with the freer flow of commerce and return to work and school. The other is the innate desire for safety – for a minimization of risk not only to one’s own person, but as a society in containing and diminishing infection and mortality. The pressure on each plate is tremendous with much at stake. These plates are in sharp relief when it comes to envisioning a return to the workplace. In a rush to get back to some state of normalcy the issues raised by antibody testing as a means for allowing freer and safer movement cannot be ignored. It should not be rushed into without a thorough consideration to the outstanding questions and potential ramifications.

View additional COVID-19 counsel from the FleishmanHillard global network here.