As they gear up to reopen or return to the office, employers are struggling with how best to ensure their workers’ safety. One method of infection prevention is to offer employees testing — either for current COVID-19 infection (i.e. viral testing) or previous infection (i.e. antibody testing). But what types of COVID-19 testing are permitted, and what testing, if any, may employers require?

Viral Testing

The Equal Employment Opportunity Commission (EEOC) opined in its updated guidance on April 23, 2020 (see Section A.6) that employers may administer COVID-19 tests to detect the presence of the virus if certain conditions are met; specifically:

• First, consistent with the Americans with Disabilities Act (ADA), any mandatory viral testing for COVID-19 must be job-related and consistent with business necessity. In the context of the current pandemic, employers may take steps to determine if employees entering the workplace have the virus because, if they do, they will pose a direct threat to the health of others. Per the EEOC, an employer may choose to administer viral testing for COVID-19 to employees before they enter the workplace.

• Second, employers should ensure that the tests are accurate and reliable. The EEOC encourages employers to consult guidance from the Food and Drug Administration about what constitutes safe and accurate testing, as well as guidance from the Centers for Disease Control and Prevention or other public health authorities, and to check for updates. 

• Third, because viral testing only detects current infection, employers should still require that employees observe infection control practices (such as social distancing, regular hand-washing and other measures) at work to prevent transmission of the virus. 

Certain testing may be permissible, but given the continuously changing environment, there are still significant risks and challenges with imposed testing. Employers should remain wary and contact experienced employment counsel before implementing any testing policies. 

Antibody Testing

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, if the employee is no longer infectious) at risk. The ADA direct threat requirement is a high standard. Under current EEOC guidance, an employer would not be permitted to force “high risk” workers who test negative for antibodies to stay home unless the employer can establish after an individualized assessment that the risk of substantial harm cannot be reduced or eliminated by reasonable accommodation. (See Section G-4 of EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws). Given all of these factors, it is unlikely that the EEOC would authorize employers to require antibody testing that at best establishes an employee’s presence in the workplace poses no direct threat to her own health. 

It is possible that, once antibody testing is more reliable, widely FDA-approved, and shown to establish that an employee has immunity protection for a substantial period of time, the EEOC will authorize its use by employers on a voluntary basis. We are not there yet. 

Some other considerations that would militate against requiring antibody testing of employees now include the intrusive method of testing (i.e. blood draws) and the assumption that the employer would receive the private testing results. Plus, employers may not exclude employees from work either because they do not submit to antibody testing or they do not “pass” the test, so it has limited utility. 

Mechanics of Testing

Employers that would require infection testing of, or offer voluntary immunity testing to, their employees should tread carefully, and utilize the same level of care that applies when they host flu shot clinics in the workplace. For voluntary testing, employees should sign consent forms, authorizing the testing and the release of the results to the appropriate party. Appropriately trained professionals — optimally nurses or similar health care professionals — wearing appropriate personal protective equipment should administer the testing. Employers should ensure the confidentiality of any results and maintain the privacy of employees’ testing data. 

Some pundits have pushed for immunity from liability for employers that share specific employees’ infection status with other employees in an effort to cut down infection. Currently, there is no immunity at the federal level for releasing this private information. 

• Whether wage and hour and/or paid sick leave laws may require employers to pay employees for time spent testing and waiting for test results. Please note that the Families First Coronavirus Response Act provides for paid sick leave for eligible employees of covered employers for this purpose. 
• How often employee testing may need to be conducted to maintain a safe and healthy work environment.
• Under what circumstances employees who previously tested positive for COVID-19 may return to work and to what extent subsequent testing may be required.
• Being aware that employees who test negative but are part of the high-risk population (those who are 65 years of age or older, pregnant, or have an underlying health condition) may require additional accommodations to ensure their safety in the workplace (i.e. continuing teleworking when possible or altering job duties to reduce contact and exposure to others).
• How to create a safe work environment for employees who have worked closely with another employee who previously tested positive for COVID-19 (i.e. undergoing additional testing after exposure, sending employees home to self-quarantine for a period of time, requiring additional protective gear, or erecting physical barriers to limit contact with others).
• How to respond to employees who refuse to cooperate with the employer’s mandatory testing requirement without engaging in retaliation or other adverse actions if the employee engages in protected activity.

The science and sophistication of COVID-19 testing is evolving rapidly. Employers should stay attuned to new developments — both scientific and legal — as they plan to test employees for the virus. 

This return-to-work checklist provides a helpful overview of the myriad issues employers need to consider as they prepare to reopen workplaces.