COVID-19

The CDC Provides Guidance: Antibody Testing Cannot Be Used as a Return to Work Passport

On May 26, 2020, the Center for Disease Control and Prevention (“CDC”) released its anxiously awaited Interim Guidelines for COVID-19 Antibody Testing (the “Guidelines”). As set forth in further detail below, the Guidelines make clear that COVID-19 antibody testing should not be used to make decisions about returning employees to the workplace.

While the Guidelines detail some encouraging data developed from early studies on antibody testing, several concerns remain. On the encouraging side, the CDC states in the Guidelines that “nearly all immune competent individuals” will develop an immune response following infection with COVID-19 and recurrence of COVID-19 illness “appears to be very uncommon,” suggesting that COVID-19 antibodies may confer at least some short-term immunity. Consistent with this observation, the Guidelines further note that in experiments involving primates, infection and subsequent development of antibodies resulted in protection from reinfection. Additionally, the Guidelines note that antibody development in humans correlates with a marked decrease in viral load in the respiratory tract. According to the CDC, taken together, these observations suggest that the presence of antibodies may decrease a person’s infectiousness and offer some level of protection from reinfection. However, the Guidelines make clear that definitive data are lacking and it remains uncertain whether individuals with antibodies are protected against reinfection with COVID-19, and if so, the duration of that protection and what concentration of antibodies is needed to confer protection.

In addition to these issues, the CDC raises several other concerns in the Guidelines regarding antibody testing. The Guidelines note that some antibody tests can lead to false positive results, when they react with the presence of antibodies to other coronaviruses like the common cold. Moreover, the CDC cautions that certain individuals may not develop detectable antibodies even after infection while others’ levels could wane over time to be undetectable. The timing of antibody tests can affect the result as well; as the CDC notes, the most useful antibodies for assessing antibody response are not present early in infection, and only become detectable 1-3 weeks after symptom onset. Thus, antibody test results may not definitively indicate the presence or absence of current or previous COVID-19 infection.

In light of the continuing uncertainty regarding these issues, the CDC affirmatively states that COVID-19 antibody testing results “should not be used to make decisions about returning persons to the workplace.” The CDC specifically notes that although certain testing can have “high positive predictive value” indicating 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.” In addition to stating that employers should not use antibody testing to determine eligibility to return to the workplace, the CDC also recommends against using antibody testing to make decisions about admitting individuals to other congregate settings, such as schools, dormitories, or correctional facilities.

Finally, the CDC states that its Guidelines do not affect existing guidance from public health authorities and other governmental agencies on maintaining social distancing and using PPE in the workplace. The CDC notes that healthcare workers and first responders should continue to use PPE even if they test positive for COVID-19 antibodies. Further, while those who test positive for antibodies and do not have a recent history of “a COVID-19 compatible illness” have a low likelihood of active infection, they should still follow general recommendations to prevent the spread of infection.

While this area is rapidly evolving, employers now have affirmative guidance from the CDC that antibody testing should not be used to make decisions about bringing employees back to work. Since the EEOC has largely deferred to the CDC on this issue, employers who condition an employee’s return to work on a positive test for antibodies may be subject to claims by both the individual and the EEOC.

COVID-19 UK: Employment – Holiday in the time of COVID-19 – Update

On 13 May 2020, the UK government published guidance giving employers much needed clarity on how holiday entitlement and pay operate during the Coronavirus pandemic. It considers both those who continue to work and those who have been placed on furlough under the Coronavirus Job Retention Scheme.

When the government issued travel advice against all non-essential travel back in mid-March, perhaps we might have been forgiven for thinking that summer plans would be unaffected. However, it is becoming clear that such plans will also have to be put on hold and so employees may be considering cancelling their holiday bookings. READ MORE

Six Degrees of Separation: Temperature Testing as Employees Return to Work

As states begin to reopen and employees return to the workplace, employers are faced with trying to protect workers and prevent the spread of COVID-19 in the workplace. Many employers are looking to temperature testing as a potential safeguard. Like many emerging safety measures, though, there are several considerations to weigh before implementing temperature testing: READ MORE

One Step At a Time: New York Issues Guidance for Businesses as Parts of State Reopen

New York State has begun its slow and deliberate process of re-opening on May 15, 2020. Governor Cuomo has established both a regional and industry approach for how the state will re-emerge following the state-wide Executive Order restricting all non-essential businesses since March. The process will be gradual, however, with restrictions on non-essential business in much of the state, including New York City and the surrounding suburbs, potentially continuing through May 28, 2020. READ MORE

Reducing Salary Costs Across the Globe – An Overview of COVID-19-Related Work Hour Reduction and Furlough Schemes

Can companies reduce the working hours and/or pay of their international workforce?

As the COVID-19 pandemic continues to disrupt business across the globe, many international companies are continuing to consider and implement cost-saving measures to protect their financial health. One of the major points for consideration is whether multinational companies may reduce the working hours and/or pay of their international workforce. READ MORE

Keeping the Package Delivery Workforce Safe – New Guidance From OSHA

As COVID-19 has forced more Americans than ever to stay home, the package delivery workforce has been active in delivering food and other essential items to people’s doorsteps. These package delivery drivers may have increased levels of risk of exposure to COVID-19 because the tasks they perform can bring them into close contact with the general public. READ MORE

SEC Whistleblower Program Going Strong During Coronavirus

Notwithstanding the current COVID-19 crisis, the Securities & Exchange Commission has continued to award numerous multi-million-dollar bounties under its Dodd-Frank whistleblower program.

Since January 21, 2020, when the CDC confirmed the first case of COVID-19 in the United States, the SEC has issued 12 whistleblower awards totaling approximately $64 million. Some of the highlights of these awards include: READ MORE

Employers as Contact Tracers: the Employment and Privacy Implications of Returning to Work

Of the many new terms that we have learned as part of the current pandemic, ‘contact tracing’ is one that seems to offer some light at the end of the tunnel. READ MORE

California Mandates Supplemental Paid Sick Leave for Food Sector Workers

Earlier this month, California Governor Gavin Newsom signed Executive Order N-51-20, mandating that certain “hiring entities” provide supplemental paid sick leave for food sector workers. The executive order (EO) acknowledges that workers who help grow and provide food, work in food facilities and deliver food are essential critical infrastructure workers who continue to work outside their homes during the COVID-19 pandemic. In an effort to prevent food sector workers from having to go to work when they are sick, which increases health and safety risks, the EO mandates supplemental paid sick leave for certain COVID-19-related reasons. Here’s what hiring entities need to know about the EO.

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Are Your Retail Workers Ready to Return to Work? OSHA Releases New Guidance

Although COVID-19 continues to disrupt the daily lives of American workers, employers are beginning to plan for a possible return to work. This includes retailers, which have been particularly impacted by the Coronavirus pandemic with a widespread shutdown of stores.  Now, OSHA has released specific guidelines for keeping retail workers safe. READ MORE