With the U.S. Equal Employment Opportunity Commission’s (EEOC) recent “green-light” to test employees for COVID-19 before permitting them to enter the workplace, more employers are considering incorporating testing as part of their return-to-work planning. In some instances, mandatory testing may be a reactive response to reports of employee(s) being symptomatic or testing positive. In other instances, testing may be seen as a prophylactic measure designed to both restore employee and customer confidence, and mitigate against perceived litigation risk. At the same time, the federal government has not issued any mandatory guidance on testing, instead making recommendations that leave employer’s concerns to be sorted out at the state and local level, and potentially in the courthouse. Accordingly, with this alert, we explore the current “knowns” and “unknowns” associated with developing sound COVID-19 testing policies and protocols.
What We Know About Testing:
It may seem obvious, but we know that employer-mandated testing is permitted during this pandemic. As explained by the EEOC, as long as we are in a pandemic as determined by the World Health Organization (WHO), “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 has stated 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. Accordingly, the onus is on companies to ensure that whichever test they elect to administer has been deemed accurate and reliable.
We also know that employers should, according to the EEOC, “consider the incidence of false-positives and false-negatives associated with a particular test.” This means that employers cannot merely choose an approved testing method and call it a day. Rather, employers must also consider how that particular testing method’s false-positive and false-negative likelihoods may impact testing (and retesting) protocols. As discussed below, the EEOC has not elaborated as to what constitutes adequate “consideration” in this context. With that said, employers, at minimum, should mandate consistency in determining how they address the prospect of potential false positives and false negatives.
We know that an accurate COVID-19 diagnostic test only reveals whether the virus is currently present, and that a negative result does not mean that an employee will not contract the virus in the future. Accordingly, 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. Indeed, although not explicitly stated, the EEOC’s testing guidance tacitly 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.
We know, that per the EEOC, testing is not a substitution for other infection control practices. If an employer mandates testing, it “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.”
We know that, pursuant to longstanding 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. The EEOC has also explained 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 (e.g., that employee’s supervisor) that the employee is unable to work and is being placed on leave to quarantine and, if applicable, will be working from home. Still, and even as part of contact tracing, employers should not disclose the employee’s symptoms, test results, or health status to co-workers or other colleagues absent the employee’s consent.
We know that CDC guidance addresses how testing can play a critical role in determining whether individuals may discontinue self-isolation. For example, CDC guidance explains that a person who has demonstrated COVID-19 symptoms may discontinue isolation if the following has occurred: (i) resolution of fever without the use of fever-reducing medications; (ii) improvement in respiratory symptoms; and (iii) two consecutive nucleic-acid test results from specimens collected at least 24 hours apart have come back negative. Employers should consider consulting and incorporating this guidance from the CDC into any employee testing protocol.
Yet, we know that the EEOC’s new guidance does not require employers to test their employees for COVID-19. In fact, currently, no public health authority in the United States has instituted a mandatory testing regime. Even though employers are not required to subject their employees to COVID-19 testing, such testing, if feasible, is a method to demonstrate reasonability and provide employees and clients/customers with confidence in the business.
We know that new OSHA guidance requires employers to report confirmed cases of COVID-19 when the case is “work-related.” Under previous OSHA guidance, employers outside the healthcare/emergency responder fields were required to record positive cases of COVID-19 with OSHA only if there was objective evidence that the case was work related. However, recently issued guidance, effective on May 26, 2020, clarifies that COVID-19 is a recordable illness that must be reported on OSHA Form 300 if: (1) an employee has a confirmed case of COVID-19; (2) the employee was exposed to COVID-19 in the workplace; and (3) the case results in death, days away from work, restricted work, transfer to another job, or serious medical treatment. This new guidance specifies that merely recording an instance of COVID-19 does not mean that the employer violated any OSHA standard. It also provides employers with a list of considerations that OSHA will assess in determining whether an employer has properly reported a COVID-19 case as work-related. For example, OSHA will consider the reasonableness of the employer’s investigation into whether the infection was work-related. OSHA will also consider the evidence and information reasonably available to the employer when making the work-relatedness determination. As stated by OSHA, “[i]f, after the reasonable and good faith inquiry . . . , the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” In light of this new guidance, employers should consult with counsel to determine whether a positive COVID-19 case in the workplace should be reported to OSHA.
What We Still Don’t Know About Testing:
It is still unclear whether employers can test for COVID-19 antibodies, which indicate that a person previously had the virus. The EEOC’s permissive guidance applies to “a test to detect the presence of the COVID-19 virus.” As background, screening approaches for COVID-19 primarily include “diagnostic” tests for active infection with SARS-CoV-2 (the virus that causes COVID-19) and “immunoassays” that screen for past infection by detecting antibodies. If the language in the EEOC guidance is followed to the letter, it would appear to bar immunoassays test because they do not “detect the presence of the COVID-19 virus,” but rather indicate whether antibodies are present. Recognizing that we still do not know whether a person can be re-infected with COVID-19 (see below), it is not intuitive whether the EEOC would be permissive in viewing the purpose of immunoassays testing.
We still do not know much about the body’s immune response to the virus, including whether or not previously infected individuals develop immunity. Thus, even if employers are permitted to test employees for antibodies, knowledge that an employee previously had COVID-19 is of uncertain value. As of late April 2020, the WHO has opined there is no evidence that individuals who have recovered have immunity from the virus. Consequently, for the foreseeable future, employees that have recovered from COVID-19 and been cleared to return to work should be considered equally susceptible to the virus as other employees, and should be tested accordingly.
We still have no guidance regarding the frequency of testing. In an ideal world, employers would have the ability to conduct daily testing of all employees at their discretion. At this point, however, the availability of testing kits makes that nearly impossible for most businesses, understanding that such mandatory testing could be an otherwise controversial practice. Until affordable tests are widely available, employers should remain diligent in enforcing the traditional methods of screening (e.g. temperature checks, self-monitoring, etc.) and employ testing whenever possible and in a manner likely to produce the most meaningful results.
The EEOC still has not clarified what it means to “consider” the incidence of false-positives and false-negatives associated with a COVID-19 test. Although the EEOC’s guidance counsels employers to consider false-positives and false-negatives, it offers very little in the way of practical application of this suggested “consideration.” Does that mean tests should be administered multiple times? Does it mean that some approved tests should be used in favor of other approved tests?
Considerations for Adopting a Sound Testing Protocol:
Given the variety of business environments, there is no “one-size-fits-all” approach to testing, and employers should adopt protocols that address their specific kinds of workplaces. Regardless the following considerations should form the basis of a sound testing protocol:
- Testing for COVID-19 must be conducted on a nondiscriminatory basis, meaning that any testing protocol should be applied equally to all employees.
- Any screening, testing, or inquiry that is broader than necessary to address the potential direct threat should be prohibited. Accordingly, employers should resist any urge to expand testing or screening beyond ascertaining the presence of COVID-19 through a diagnostics test, including being cautious about administering the antibody test given the present lack of clarity as to whether such tests are permitted.
- It is possible that certain employees with a medical condition may request an accommodation, such as making available an alternative testing method.
- Employers should consider how any requests to be excused from testing based on faith-based arguments will be handled. For example, an employee’s religious beliefs may prevent them from providing a blood sample for a test. In response, an employer should be prepared to seek alternative testing methods, such as through saliva or swabs.
- Thoughtfully consider where and how testing will be conducted. If onsite, consider how to mandate maintain social distancing for employees waiting to be tested; provide PPE for persons conducting testing; and exit strategies from the physical workplace for persons who test positive.
- Consider visitor and vendor screening if such third parties will be needed onsite to support the regular workforce’s return to the workplace.
- Any testing protocol should be prepared to handle (consistently) an employee’s refusal to submit to testing.
- Recognize that there may be an obligation under wage and hour laws to pay employees for time spent waiting to be tested, as well as time spent waiting for the results of the test, assuming the employee will not be admitted to the workplace until the employer has received testing results.
- Require employees to consent in writing to the screening, and to a COVID-19 return to work policy that addresses testing.