Many employers are considering onsite COVID-19 testing for their employees, either as part of their safety measures in bringing employees back to work, or because someone in their workforce has tested positive and they want to ensure a safe, healthy work environment for employees. Here’s what you need to know.
The EEOC has issued guidance that expands an employer’s ability to protect its workforce by allowing employers to test employees for the presence of COVID-19. Employers should remember that the ADA medical exam and inquiry rules apply when they are assessing workplace situations. In order to ask medical questions or require medical exams, employers must have a reasonable belief, based on objective evidence, that a specific employee might pose a direct threat. Any mandatory medical test of employees must be “job related and consistent with business necessity” in order to comply with the ADA. Applying this standard to the COVID-19 pandemic, the EEOC guidance states that employers may choose to administer COVID-19 tests to employees before they enter the workplace to determine if they have the virus “because an individual with the virus will pose a direct threat to the health of others.”,
While testing is permitted under these circumstances, here are some considerations:
- It may be difficult to procure the testing if you have employees who are not symptomatic. While the EEOC permits testing, the ADA still suggests that employers should not put employees through medical screening without evidence they have been exposed to the virus or are exhibiting symptoms.
- Per the EEOC, employers should ensure that tests are accurate and reliable. The FDA (in addition to the CDC or other public health authorities) has released guidance about what may be safe and accurate testing. CLICK HERE for more information.
- The EEOC also reminds employers that there is the potential for false positive and false negative tests and the incidences of this should be considered when selecting the tests.
A few more notes on testing:
- At this time, there are no states requiring employees be tested for COVID-19 before returning to work.
- Any employer-required screening of employees who are not showing symptoms would be covered by the employer.
- If an employee has symptoms, then the health plan would cover the screening (without cost sharing) because once an employee is symptomatic, it becomes a diagnosis and treatment scenario, not an employer health/return to work screening.
- While some carriers are setting up diagnostic codes that providers can use to code return-to-work testing so that the employer is charged, this may be the exception and not the norm. Typically, if the health carrier is involved, they will directly bill an employer for the services as return-to-work health screenings are not a basis for the health plan to cover COVID-19 diagnostic testing pursuant to the FFCRA, as amended by the CARES Act.
- Remember, any test results are subject to confidentiality. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
What about antibody testing?
An antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” An antibody test constitutes a medical examination under the ADA. In light of this CDC guidance, an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, based on the CDC’s determination, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
Further, most health carriers have confirmed that they are not covering antibody tests for individuals at this time due to lack of FDA approval on a test that meets medical standards.
For more information and resources on COVID-19 and the ADA, The Rehabilitation Act, and EEO laws, please CLICK HERE.
Also, don’t lose sight of the basics: employers should administer good infection control measures, such as social distancing, enforcing or encouraging regular handwashing, and disinfecting high traffic areas and workspaces.