The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.

As many businesses are preparing to reopen their doors, employers are increasingly considering COVID-19 testing as a strategy to try to keep their employees safe from exposure to COVID-19 in the workplace.  Employee testing promises the alluring notion that with the right tests, employers can correctly identify individuals “safe” enough to allow back to work and exclude those who pose a health risk to themselves and to others.  Also  appealing is the new notion of issuing “immunity passports” to employees who test positive for COVID-19 antibodies. For public-facing companies especially, the ability to advertise that one’s workforce is “immune” could be a selling point.

The unfortunate reality is that employee testing may be logistically and legally complicated, and can come with numerous risks to employers.   Because serious questions surround COVID-19 tests’ current efficacy, accuracy and reliability, important personnel decisions could be made on flawed or incomplete information.  Also, requiring employees to “pass” such tests before returning to work could trigger liability for violations of disability discrimination laws under, for example, the Americans with Disabilities Act, or similar state or local statutes. Other challenges may include keeping employees’ medical information private, applying testing equally to all employees to avoid discrimination claims, and ensuring the testers are properly trained and protected.  Employers should be aware of the limitations and potential risks associated with COVID-19 testing before implementing any testing programs for their employees.

There are three (3) primary test options which employers can use to screen their employees for COVID-19: Taking temperatures, Virus Testing, and Antibody testing:

• Temperature taking refers to measuring an individual’s temperature, using a thermometer or a no-touch body scan or temperature-measuring app. If an individual has a fever (generally 100.4 degrees Fahrenheit, according to the Centers for Disease Control and Prevention (CDC)), it may be a symptom of an infection, including a COVID-19 infection.  Some businesses are taking the temperatures of their employees and visitors and prohibiting any individuals with fevers from entering their premises.

• Viral tests (a.k.a. “molecular,” “diagnostic,” “PCR,” and “antigen” tests) detect active infections of SARS-CoV-2, the virus that causes COVID-19, using samples from an individual’s respiratory system (such as swabs of the inside of the nose or throat). Certain tests are conducted at a testing site and results are available within minutes, while others must be sent to a lab for analysis. Others permit home collection but must be sent to a laboratory to analyze, which can take  1-2 days once the laboratory receives the samples.  If a viral test comes back positive, most likely the individual has an active COVID-19 infection and can possibly transmit the virus to others.  Some employers are requiring their employees to obtain negative viral tests in order to come back to work.

• Antibody tests (a.a. serologic tests) check a sample of a person’s blood to detect antibodies to the virus that causes COVID-19. Ideally, a positive result shows whether an individual has previously been infected with SARS-CoV-2, and subsequently developed antibodies to the virus.  Some employers may consider requiring employees to test positive for SARS-CoV-2 antibodies before permitting them to return to work, on the theory that those employees are “immune” to further infection, and cannot infect others.

Prior to the pandemic, mandatory employee testing (like those methods listed above), was generally prohibited, except in rare circumstances.  However, since the World Health Organization (WHO) declared COVID-19 a “pandemic,” the guidelines have changed.  Recently, the Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal workplace discrimination laws – issued special guidance expressly permitting employers to take employee temperatures and conduct viral COVID-19 tests.  This guidance is based on the reasoning that an employee with COVID-19 poses a “direct threat” to the health of others, defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The EEOC guidance advised that the tests must be both “accurate” and “reliable” based on information available from the Food and Drug Administration (FDA) and the CDC. Employers also are encouraged to consider the incidence of false-positives or false-negatives associated with a particular test.  Several local governments have seemingly adopted the EEOC’s policy stance, permitting – or even requiring in certain instances – that employers conduct temperature screening on employees to identify and eliminate from the workplace those with fevers or other symptoms of COVID-19.

The EEOC has not explicitly approved the use of antibody tests, however.  This may be because antibody tests do not test for a current infection of the virus that causes COVID-19. Thus, a positive antibody test result cannot identify whether an employee poses a “direct threat” to others, and a negative result cannot identify whether that employee is “directly threatened” by anyone else.  Employers who rely solely on antibody tests may end up excluding safe, eligible employees from the workforce, and may return to work employees who may pose no lesser threat than any other untested employee (and those employers could find themselves defending a disability discrimination lawsuit).

There are other limitations on the use of these tests that employers should consider:

• Though temperature checks are quick and can be less invasive than other tests, temperature screens may not identify all COVID-19-positive employees, as employees may not be symptomatic. It may also be difficult to administer temperature taking in a lawful way, including keeping employees’ medical information private, paying employees for waiting time, and properly training those who are involved in the temperature-taking process.

• A negative viral test – meaning the employee does not have a current infection – does not mean that the employee will not get exposed and get sick, even possibly a short time later.

• Antibody tests should be approached most cautiously of all, since antibody testing does not identify employees with a current COVID-19 infection. In fact, the CDC states that a positive antibody test means the individual may have antibodies from an infection with the virus that causes COVID-19, or possibly from infection with a related virus from the same family of viruses (called coronavirus), such as one that causes the common cold. Therefore, even a positive antibody test may not definitively indicate a prior COVID-19 infection. Furthermore, the notion that employees with antibodies are “immune” to COVID-19 is also speculative: both the WHO and the CDC caution that it is not yet known whether having antibodies to the virus can protect someone from getting infected with the virus again, or how long that protection might last. Notably, the CDC itself recommends that antibody tests should not be used to make decisions about returning persons to the workplace.

The bottom line: Employers should carefully consider the pros and cons of performing and relying on COVID-19 tests.  If companies do decide to implement testing of employees returning to the workplace, they should implement cautiously crafted policies, procedures, and training to ensure the confidentiality, legality, and safety of all involved in the testing (both tester and subject).   Finally, employers should still require – to the greatest extent possible – that employees observe the other basic infection control practices in the workplace (such as social distancing, wearing personal protective equipment, regular handwashing, and other measures) to prevent transmission of COVID-19.