1. Employees with signs or symptoms consistent with COVID-19
It is appropriate, and recommended, that workers with COVID-19 symptoms be referred to a healthcare provider for evaluation and potential testing. This includes employees who are screened for symptoms and/or temperature prior to their shift.
2. Employees with recent known or suspected exposure to COVID-19
Those who have been recently exposed, or suspect they have been recently exposed, to a confirmed COVID-19 case should be sent home for self-quarantine and should be tested immediately. The CDC advises waiting several days after exposure for testing as the virus may not be immediately detected.
3. Asymptomatic employees without known or suspected exposure in special settings
Testing individuals without symptoms or exposure may be appropriate, particularly in areas with moderate to substantial community transmission, and in workplace settings including:
- Workplaces where physical distancing is difficult and employees are within 6 feet of others for 15 minutes or more;
- Workplaces in remote settings where medical evaluation or treatment may be delayed;
- Workplaces where continuity of operations is a high priority (such as critical infrastructure sectors); or
- Workplaces providing congregate housing for employees.
- Initial testing of all workers prior to entering the workplace;
- Periodic testing of workers at regular intervals; and/or
- Targeted testing of new workers or those returning to work from a prolonged absence.
4. Employees who have recovered from COVID-19 prior to returning to work
Under the Americans with Disabilities Act (“ADA”), employers are permitted to require a healthcare provider’s note to verify that employees are able to return to work. However, the CDC cautions employers that healthcare providers may be extremely busy during these times and may not be able to provide documentation in a timely manner.
For employees with suspected or confirmed cases of COVID-19, the CDC advises that an employer’s decision on whether to return the employee to work should be made in the context of local circumstances. The CDC suggests using symptom-based, time-based, or test-based strategies when making this determination. Additionally, they advise employers to consult healthcare providers and public health officials when determining which strategy to adopt.
The CDC also states that “most people with COVID-19 have mild illness, can recover at home without medical care, and can follow CDC recommendations to determine when to discontinue home isolation and return to work.”
5. Public health surveillance
The CDC also allows employers to test workers as part of a public health surveillance program to detect transmission hotspots, or to better understand disease trends in a workplace. The CDC advises that employers should only undertake surveillance if the results are reasonably likely to benefit employees. As of the date of this publication, the EEOC has yet to comment on the ADA implications of a surveillance testing program. Employers should reach out to counsel before implementing testing for public health surveillance purposes.
An employee awaiting test results should be sent home to quarantine. Remember to keep health screenings as confidential as possible to protect workers’ privacy and prevent stigma and discrimination in the workplace. If a test result indicates an employee has COVID-19, they should not return to work and should isolate at home. Measures should also be taken to inform any employees who may have had close contact while maintaining confidentiality of the individual with COVID-19. The CDC defines close contact as contact within six feet of an infected person for fifteen minutes or more, dating back to two days before symptoms appeared or a positive test result returned.
Employers considering implementing workplace testing for COVID-19 should carefully review the CDC guidelines and evaluate additional requirements and guidance from state and local authorities, and confer with counsel on the potential legal ramifications of such a plan. The CDC encourages employers to collaborate with state and local officials to determine whether and how to implement their suggested strategies and to determine what is most appropriate for their circumstances. The CDC guidance does not replace any state or federal law or regulation for which workplaces must comply, and these strategies should be carried out consistently with those laws and regulations and the Equal Employment Opportunity Commission (EEOC) guidance.
Additionally, the CDC does NOT recommend the use of antibody tests to determine which employees may return to work.
For more information on workplace testing of COVID-19, please contact our team at 503-228-0500.
NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2021 por Barran Liebman LLP.