COVID-19 UPDATE: Employer Testing of Employees for COVID-19

The Equal Employment Opportunity Commission (“EEOC”) issued guidance in April and July as to whether an employer can test or require testing for employees with regard to COVID-19.  As testing becomes more available, with the results from these tests available in a timely manner, the question arises as to whether an employer can and should require employees to be tested for COVID-19 prior to coming to work.

First, it is important to differentiate between a COVID-19 test, which is a test to detect the presence of COVID-19 virus in a person, and an antibody test for COVID-19, which is a test to detect the presence of antibodies that are present in a person after the person has had and recovered from COVID-19.

Under the Americans with Disability Act (“ADA”), if an employer requires an employee to take a medical test, it must be “job-related and consistent with business necessity.”  Under this standard, the EEOC determined that an employer can take steps to determine if an employee entering the workplace has COVID-19 because of the health threat to others in the workplace.  Thus, under this guidance, employers may choose to either administer COVID-19 tests or require that an employee obtain a COVID-19 test prior to returning to work. The administering of such a COVID-19 test, however, is not presently part of the process for screening employees that is outlined in the Universal Guidelines in New Hampshire.  Under the Universal Guidelines, employers must develop a process for screening employees reporting to work for COVID-19 symptoms by taking an employee’s temperature and asking medical questions related to COVID-19 symptoms and/or exposure and also comply with any additional requirements in the industry-specific guidelines.

If they do require such testing, employers should ensure that the tests that they administer or require are accurate and reliable.  They should review guidance from the U.S. Food and Drug Administration and the Centers for Disease Control.  Employers should also be aware of false-positives and false-negatives and may want to have a policy on allowing for additional tests in order to identify any false-positives.

Employers must also determine, and make clear to the employees, how payment for such COVID-19 tests will be handled.  An employer should first check with its health insurance plan to determine whether the tests will be covered for employees without symptoms.  If not, an employer should have a clear policy on how payment is handled and absent a compelling reason, it is recommended that the employer pays for the costs of such a test.  To place such a financial burden on an employee for payment of the test could lead to claims under RSA 275:57 that such expense is not a precondition of employment and thus must be reimbursed by the employer.  Employers should also be mindful of how often they will require COVID-19 tests as the test results are only giving information on the current status and with the lapse of time, employees are potentially exposed to and could contract COVID-19 after a negative test.

With regard to antibody testing, the EEOC has stated that under the ADA, an employer may not require an antibody test for an employee before allowing the employee to come back to work.  The EEOC issued this guidance in the beginning of July and based it on the Center for Disease Control’s Interim Guidelines. The EEOC reasoned that the antibody test did not meet the ADA standard of being “job-related and consistent with business necessity.”  The EEOC may change its reasoning should the CDC issue new guidelines.

Finally, even with COVID-19 testing, employers still need to still require employees to follow infection control practices to the greatest extent possible, including social distancing, hand washing, masks, and minimizing the use of common areas.

About the Author: Jennifer Eber

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