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  • Writer's pictureHannah Kaufman Joseph

Can Employers Require a COVID-19 Test Before an Employee Returns to Work?

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on the Americans with Disabilities Act and COVID-19 (full guidance can be found here). Specifically, the EEOC explained that employers may screen employees for COVID-19. Employers are generally permitted to required medical tests if the medical test is job-related and consistent with business necessity. When applying this standard to the current circumstances of the COVID-19 pandemic, the EEOC has said that “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.” As such, employers may administer COVID-19 testing to employees before they enter the workplace. The EEOC has advised employers to review the Food and Drug Administration and U.S. Centers for Disease Control and Prevention (“CDC”) for further guidance, and check for updates frequently. (It should also be noted that a negative test does not mean that the employee will not become infected by the virus later. As such, employers should continue to follow the guidance of medical and public health authorities, including social distancing, regular hand washing, wearing masks, and other related safety measures). Considerations for testing employees: • Similar to temperature screenings, screening/testing for COVID-19 must be conducted on a non-discriminatory basis. • Any test results must be retained as confidential medical records in accordance with the ADA’s requirements. • It is possible that an employee may have a medical condition that could require the employer to determine whether it can and needs to provide an employee with an accommodation, like making an alternative screening/testing method. • Employers need to consider ahead of time how they will handle an employee’s refusal to submit for a test. It may be necessary for the employer to bar access to the worksite for an employee who refuses to cooperate. • There may be an obligation under relevant wage and hour laws to pay employees during the time that they spend waiting to be tested and waiting for results, assuming that the employer created a policy that the employees would not be admitted to the workplace until the employer has the results. • Employers may need to get the employees written consent in writing to conduct a screening, including, but not limited to acknowledging that the screening is not a diagnostic test. • Employers need to consider when and under what conditions an employee who had previously tested positive may return to the workplace. Will the employer require one negative test? Two negative tests? • The employers also need to consider the implications for the workplace and other employees if an employee who had been in the workplace tests positive shortly after having been at work. How will the employer address the potential exposure in the workplace? (Remember employers cannot disclose the name of the employee who tests positive) At some point, employers will have employees who went into isolation following a suspected or confirmed diagnosis of COVID-19. Before welcoming that employee back to work, as previously addressed, employers can ask for a certificate of fitness confirming that the employee no longer is contagious and/or positive. However, the employer will also have to consider how the employee should be reintroduced to the workplace. The CDC has issued interim considerations for employees’ return to work after suspected or confirmed COVID-19 cases:

The time-since-illness-onset and time-since-recovery strategy for releasing a COVID-19 individual with symptoms from isolation (non-test-based approach) requires the following:

- At least three days (72 hours) have passed since recovery , which is defined as the resolution of fever without the use of any fever reducing medications; AND

- Improvement of respiratory symptoms (i.e. cough and shortness of breath); AND

- At least seven days have passed since the symptoms first appeared.

The testing-based strategy for those who have COVID-19 with symptoms requires:

- Resolution of fever without the use of fever reducing medications; AND

- Improvement of respiratory symptoms (i.e. cough and shortness of breath); AND

- Two consecutive negative results from the FDA-authorized nasal swab test taken at least twenty-four (24) hours apart.

Individuals with laboratory-confirmed COVID-19 who have not had any symptoms may discontinue isolation after at least seven (7) days have passed since the date of their first positive COVID-19 diagnostic test and they have had no subsequent illness – so long as they have remained asymptomatic. However, for three (3) days following the discontinuation of isolation, the individual should continue to limit contact with others (always at least six (6) feet apart) and limit the potential dispersal of respiratory secretions by wearing a covering for their nose and mouth when they are out of their homes. The CDC guidance notes that individuals with compromised immune systems may be infectious/ spread the virus longer than others after recovery and they need to discuss this issue with their healthcare providers. The nature of the workplace plays a critical role in the steps taken when reintroducing an individual who had a suspected or confirmed case of COVID-19. For example, employers in the health care field are within their rights to apply more stringent criteria for reintroduction into the workplace. The CDC has issued separate guidance for healthcare workers returning to work which can be found here. Employers also need to consider OSHA Guidance on maintaining a safe workplace during the COVID-19 epidemic as well as the EEOC’s Guidance. Finally, employers need to be cognizant of the fact that a number of other issues may arise when reintroducing an employee who had a suspected or confirmed case of COVID-19 into the workplace. While contracting the virus has not yet been determined to be a disability under the ADA, the ADA protections afforded to individuals with “perceived” disabilities will still apply. Employers in this situation do not have a duty to accommodate an individual with a “perceived” disability, but they cannot discriminate against an individual based on a “perceived” disability. Please note that as this situation continues to develop and we gain more information regarding this virus, guidance and recommendations will change.

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