With the reopening of state economies and return-to-work on the horizon, on April 23, 2020, the EEOC issued new guidance on workplace testing for COVID-19.
The EEOC’s guidance confirms that “employers may choose to administer COVID-19 testing 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.”
- Is this a magic bullet for employers? Unfortunately, no. There are still a lot of grey areas when it comes to COVID-19, especially as more of your employees return to work.
- Should employers require a negative-result test for all employees seeking to return? The answer is also no, because in most areas of the country, testing is either not readily available, or is only available to people in certain high-risk occupations. So, obtaining a test may be impossible for many workers. Additionally, a negative-result test is of limited value because it only shows that the person was negative on that day.
- Who should be required to produce a negative-result test? If an employee was COVID-19 positive and has recovered and/or is residing with someone who was positive, then it does make sense to require that employee to produce evidence that they are negative before returning to work. This was also permitted under earlier EEOC guidance, which allowed employers to request a doctor’s note before an employee’s return to work.
- What if that employee cannot get tested? This is a grey area. The EEOC recommends employers to be flexible, but offers little guidance about what that means. Employers who allow once-tested-positive employees to return to work without first obtaining a negative-result test are opening themselves to potential lawsuits by co-workers who work in close proximity to the sick employee.
My gut advice—make the once-tested-positive employee produce a negative test result before allowing them back to work. As a litigator and an employer, I would rather risk a claim by the once-tested-positive employee about his delayed return to work, than a claim by infected co-workers.
For more practical guidance, check out recordings of Kelley Drye’s webinars Part 1: Getting Back To Work: Preparations and Considerations for Employers and Part 2: Getting Back To Work: When the Rubber Hits the Road, where we address additional practical and legal challenges facing employers in a world where the coronavirus threat has been managed, but hasn’t disappeared.