Reopening Your Workplace Series, Issue 2 – Donnelly + Gross

 

Covid19: Employers May Test Employees for Virus

Employers may test employees for Covid19 before allowing them to enter the workplace without running afoul of the Americans with Disabilities Act.  Employer-mandated medical testing must be “job related and consistent with business necessity” under the ADA. Under the current circumstances of the pandemic, employers may take steps to determine if employees entering the workplace have Covid19 because “an individual with the virus will pose a direct threat to the health of others,” according to the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC guidance is important as stay-at-home and emergency orders around the country begin to lift restrictions and employers look ahead to safely reopening their business or increasing on-site staffing levels hit by the virus.

 

Tests must be accurate and reliable

Not all tests are created equal.  Employers should be aware of the incidence of false positives or false negatives with certain types of tests, should exercise care in selecting tests that are accurate and reliable, and should seek guidance from public health agencies such as the FDA and the CDC.  Because information regarding testing is evolving, employers who choose to test their employees should check with public health agencies regularly for updates and to insure compliance.

 

Infection control practices should still be enforced

The Covid19 test only detects whether an individual actively has the virus.  As such, employers who choose to test their employees should still require their employees to observe infection control practices such as social distancing and frequent handwashing, to the greatest extent possible.

 

Additional considerations 

Like other medical information, test results must be kept confidential in accordance with the requirements of the ADA.  Moreover, employers should insure that testing is administered in a nondiscriminatory basis.

Employers should consider when and under what conditions employees who tests positive for the virus will be permitted to return to the workplace and apply the standard in a consistent and nondiscriminatory manner.

Employers should consider that time spent by employees for employer-mandated testing will likely be considered time worked under the FLSA.

Finally, as opposed to diagnostic testing (that detect the presence of the virus) which the EEOC has greenlighted, the EEOC has not yet provided guidance on serology testing (for antibodies to the virus).  The legality of serology (antibody) testing in the workplace remains to be seen as efficacy surrounding such testing continues to evolve.