We have all seen the news reports of the increased cases and hospitalizations from COVID-19. Employers wondering what to do may want to look at the information explicitly designed for employers who are not in health care on the CDC website.
This section of the CDC website is devoted to a testing strategy for this group of employers. The first item is whether or not employers may test. As the EEOC has made clear in its guidance, viral testing is acceptable under the American with Disabilities Act (ADA) during this pandemic. Antibody testing is not acceptable.
The next question is whether an employer wants to test. Much depends on the circumstances the employer is faced with in their workplace. If an employer has an outbreak of the virus in the workplace – meaning two or more employees infected – then a call to your local health department is in order. Testing and follow up actions should be in collaboration with the health department.
If you are an employer that has had no employees test positive, you may want to consider viral testing of workers without symptoms. As it says on the CDC website: viral testing “may be useful to detect COVID-19 early and stop transmission quickly, particularly in areas with moderate to substantial community transmission.” If your workplace resembles the workplaces below, you may be a good candidate:
- Physical distancing is difficult, and workers are often in close within 6 feet for 15 minutes or more with one another or the public
- The workplaces are remote, and medical evaluation or treatment may be delayed
- The continuity of operations are considered critical infrastructure
- Employees are in group housing such as a fishing vessel, offshore oil platform, farmworker housing or a wildland firefighter camp
If an employer decides to do viral testing, employees cannot be made to pay for the test. Check with your health insurance carrier as they may pay for the test. Employees should receive written information they can understand that includes all information about the test. This consists of the manufacturer and name of the test; the type, purpose, and reliability of the test; and the reliability of the test and any limitations associated with the test; and how the test will be performed.
Once the results are in, employees must be educated on how to understand what the results mean, what actions are associated with negative or positive results, who will receive the results, and how the results may be used. Of course, if an employee tests positive, they must immediately be separated from the rest of the work population and be quarantined as instructed by a doctor or local health department.
It is also true under the ADA that the result of a test must be kept confidential. An employer must determine what action they will take if an employee refuses to be tested. This might include not allowing the employee at the worksite for a particular period. Again, reviewing information from a doctor, local health department, or CDC is in order.
If you would like to discuss this further, the staff at Employers Council are here to take your call.