Update February 17, 2021: This post is in the process of being updated.
In an effort to keep their employees, customers, clients, and others safe, businesses are considering whether to require their employees to submit to testing for COVID-19 or antibodies. Testing can play a crucial role in businesses' reopening plans, but there are numerous factors to consider when making this decision.
The quick takeaway is that under federal law, employers may require COVID-19 testing of employees, but this is a gray area under California law. If employers do require COVID-19 testing, they must take steps to ensure that their testing procedures are legally compliant, reliable, and effective. Employers may not require antibody testing of employees, and are discouraged from offering antibody testing on a voluntary basis.
May Employers Require COVID-19 Testing of California Employees?
The answer is clear under federal law: Yes.
In its April 2020 guidance, the Equal Employment Opportunity Commission (EEOC) stated that it is legal for employers to require its employees to take COVID-19 viral tests. The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be "job related and consistent with business necessity." 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. An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
The answer is not so clear under California law, however.
In its Employment Information on COVID-19, the California Department of Fair Employment and Housing (DFEH) issued guidance on matters related to testing (such as what an employer may tell other employees about another employee who has tested positive for COVID-19), but does not definitively state whether employer-mandated COVID-19 testing is permissible.
Some employers have opted to conduct less invasive methods of health screening. One such method is to require employees, before reporting to work each day, to take their own temperatures and complete symptom questionnaires. Only employees who do not have a fever or any possible COVID-19 symptoms may report to work.
In some industries, local orders provide more direction on the permissibility of employer-mandated COVID-19 testing. For example, the Los Angeles County Department of Public Health's Reopening Protocol for Music, Television and Film Production provides that in television and film production, there must be "regular, periodic testing of the cast and crew on a given production to mitigate the risk of the spread of COVID-19, especially for those cast and crew that are involved in high risk scenes requiring close contact without face coverings for extended periods of time."
This means that not only is COVID-19 testing of employees permissible for some employers in Los Angeles County—it is required. In order to ensure legal compliance, employers should pay close attention to the local orders and guidance in which their employees perform work.
May California Employers Require Antibody Testing of Employees?
The EEOC issued updated guidance on June 17, 2020, stating that employers cannot lawfully require employees to take antibody or serology tests (which determine whether a person ever had COVID-19 and built up antibodies even if they were asymptomatic). Referencing the CDC's Interim Guidelines for COVID-19 Antibody Testing, the EEOC explained that employers may not require antibody testing before permitting employees to return to work because antibody testing does not meet the ADA's "job related and consistent with business necessity" legal standard for medical examinations or inquiries for current employees.
While the guidance does not expressly prohibit employers from offering antibody tests for employees to take on a voluntary basis, doing so may bring more risk than reward. For example, an employer who considers employees' antibody test results in its employment decisions (e.g., reinstating an employee who tests positive for antibodies over an employee who has tested negative or not tested at all) may be on the receiving end of a disability discrimination lawsuit, for giving weight to an employee's medical information when the information no longer renders the employee a "direct threat" to the workplace.
This is precisely why COVID-19 tests and antibody tests are treated differently under federal law. If an employee tests positive for COVID-19, they currently have the virus and may spread it to their coworkers, so they may be barred from the workplace until they have recovered. Conversely, an employee who tests negative for COVID-19 (likely) does not have the virus and (likely) is not at risk of spreading it to their coworkers, so they may be permitted to return to work. However, the results of an employee's antibody test only inform whether the employee had the virus in the past.
Once an employer has determined that COVID-19 testing of employees is permissible in both their industry and jurisdiction, they still must ensure that the testing procedure is legally compliant, reliable, and effective.
- 1. Selecting the Right Test. The reliability and timing of the test are vitally important. Employers should select reputable testing companies to conduct their employees' COVID-19 testing. It can be challenging to secure quick turnaround times from reputable testing companies, due to the high demand for their services. California’s COVID-19 Testing Guidance (updated as of July 14, 2020) advises public health officials, healthcare providers, and laboratories to prioritize testing for certain populations (e.g., hospitalized individuals with COVID-19 symptoms) over others. This will add to employers’ difficulty in obtaining timely test results for their employees. The longer the turnaround time, the less useful the test results will be, because every day between an employee's test and their return to work is another day in which they may have been exposed to the virus. For example, an employee may be tested on Monday in advance of reporting to work on Friday, but then go to a family gathering on Wednesday. To the extent possible, employers should contract with reliable testing companies and conduct employee testing within 24 to 48 hours before they are expected to report to work.
- 2. Document the Process. Create a testing policy to defend claims of discrimination and gaps in the testing process. Without a written policy, employees may claim they were singled out for testing based on illegal considerations.
- 3. Authorization Related to Medical Information. To comply with the federal Health Insurance Portability and Accountability Act (HIPAA) and California's Confidentiality of Medical Information Act (CMIA), employers must obtain signed employee authorization forms, in which employees consent to the testing as a condition of their employment or continued employment and authorize the employer to consider the results when determining an employee's eligibility to work (i.e., instructing an employee to stay home from work after testing positive for COVID-19). Depending upon the language used, these forms may permit an employer to receive employees' test results directly from the laboratory that conducted the tests.
- 4. Confidentiality of Test Results. COVID-19 test results are considered confidential medical information under both state and federal law. This means that they must be kept in a separate medical file that is viewed only by members of management with a true need to know. Information about employees' test results may not be shared with other employees.
- 5. Responding to Positive Tests. If an employee tests positive for COVID-19, the employer must not reveal the employee's identity to others in the workplace. While the California Department of Public Health's Guidance on Responding to COVID-19 in the Workplace instructs employers to notify all employees who were potentially exposed to the individual with COVID-19 ("close contacts") and provide them with instructions on home quarantine, symptom monitoring, and COVID-19 testing, employers must be careful not to disclose the name or other identifying information about the sick employee.
- 6. Remain Vigilant. COVID-19 testing is not 100 percent reliable. It is possible for an employee who is infected with the virus to test negative, and for an employee who does not have the virus to test positive. Where permissible, employers should consider using other health screening methods (e.g., temperature testing and/or symptom questionnaires) in conjunction with COVID-19 testing. COVID-19 testing should not provide employers with a false sense of security; even if all employees in the workplace have tested negative for COVID-19, maintaining physical distancing and proper hand hygiene, wearing face coverings and personal protective equipment, and following the CDC's cleaning and sanitation protocols are the best methods for preventing COVID-19 in the workplace.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.