Employer-mandated testing is permitted during this pandemic. In statements available on their website the Equal Employment Opportunity Commission has determined that as long as we are in a pandemic (a determination made by the World Health Organization), “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” The EEOC further states that any test must be “accurate and reliable,” and that employers can assess accuracy and reliability by consulting guidance from the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and other public health authorities.
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. Accordingly, says the EEOC and CDC, employers should be diligent regarding prevention policies in the workplace, even after testing all of their employees. Furthermore, employers should, if possible, consider administering several rounds of testing. Although not explicitly stated, the EEOC’s testing guidance condones multiple rounds of testing given the realities of virus contraction. It also discourages employers from adopting testing protocols that excuse individuals who test negative from future testing.
It is the company’s responsibility to ensure that whichever test they elect to administer has been deemed accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Using a rapid antibody test, which are now widely known and reported as unreliable and inaccurate does not meet this standard and will create risk and liability for the employer.
Company policies for mandatory testing must be non-discriminatory, and consistent. If an employer elects to employ a testing program, it should adopt a written policy that describes (at a minimum) the circumstances under which testing will be required or offered, the consequences of a positive test result, and the employer’s procedures for maintaining as confidential the results of any test.
The EEOC has said that employers may maintain COVID-19-related medical information in existing medical files. If an employee tests positive or has symptoms, an employer may inform persons with a need to know that the employee is unable to work and is being placed on leave to quarantine and, if applicable, will be working from home. Employers should not disclose the employee’s symptoms, test results, or health status to co-workers or other colleagues absent the employee’s consent.
Pursuant to EEOC guidance under the Americans with Disabilities Act (ADA), all medical information about employees should to be stored separately from their personnel file and access to this confidential information should be limited.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related as defined by 29 CFR § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Symptom-based strategy. Exclude from work until:
- At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
- At least 10 days have passed since symptoms first appeared
- Resolution of fever without the use of fever-reducing medications and
- Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
- Negative results of an FDA Emergency Use Authorized COVID-19 molecular assay for detection of SARS-CoV-2 RNA from at least two consecutive respiratory specimens collected ≥24 hours apart (total of two negative specimens). See Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens for 2019 Novel Coronavirus (2019-nCoV). Of note, there have been reports of prolonged detection of RNA without direct correlation to viral culture.
Currently, there is no Food and Drug Administration (FDA)-approved COVID-19 test. Instead, FDA is issuing emergency use authorizations (EUA) for the marketing and use of authorized commercial test kits and laboratory developed tests (LDT) to diagnose COVID-19 or identify the presence or absence of antibodies while there are no adequate, approved, and available alternatives. FDA is also exercising enforcement discretion with respect to the marketing and use of certain COVID-19 tests pending an EUA request or, in some cases, without the laboratory or test manufacturer ever requesting an EUA.
Employers should ensure that any laboratory or vendor contracted to perform COVID-19 tests on employees holds appropriate Clinical Laboratory Improvement Amendments (CLIA) certification (or is licensed in a state that maintains certification standards equivalent to or more rigorous than CLIA) to perform clinical testing that can be relied upon for clinical decision-making. Using US made tests that are assayed by Certified Clinical Laboratories as opposed to rapid tests and kits- those devices similar to pregnancy tests- will likely yield more accurate and reliable results.
Choosing a vendor that works with accredited labs using US made tests should provide an employer with a defensible policy that meets EEOC criteria for using “accurate and reliable tests.”
To date, the EEOC has not authorized employers to conduct mandatory antibody testing of employees under any circumstances. The EEOC’s non-binding guidance concerning viral testing relies on the assumption that the testing will identify employees who may pose a direct threat to others. Even when effective, antibody testing only identifies employees who can return to the workplace without putting their own health (or potentially the health of others) at risk.