As COVID-19 has now reached the highest office in the nation, President Trump and First Lady Melania Trump have both tested positive for COVID-19 and the list keeps growing. We are grappling with whether and how to deploy COVID-19 diagnostic testing as a back-to-work solution. So many questions in regard to how to handle - when an employee has been exposed to a suspected or confirmed case of COVID-19, is testing the answer? Just this week, and first in the nation, Tampa Airport launches COVID-19 testing to all travelers, regardless of destination or airlines.
It is truly a delicate balance between keeping our workplaces safe and the invasiveness of testing and privacy issues, plus real concerns about testing availability and accuracy. Science weighs as heavily, symptomatic versus asymptomatic, and as the list of new symptoms evolves. Compliance and legal concerns abound - which by the way, vary widely across industries and states and localities.
We know that COVID-19 tests currently fall into the following three categories with varying levels of accuracy and reliability: (1) Virus tests: tests for the presence of the SARS-CoV-2 virus that causes COVID-19; (2) Antibody tests: tests for antibodies to the virus; and (3) Antigen tests: tests for the presence of proteins that are part of the virus.
The CDC makes it clear that the test it recommends are viral tests rather than antibody tests. The CDC has issued different guidelines for high risk settings, especially for testing healthcare personnel. The takeaway is that the science and sophistication of COVID-19 testing is evolving and employers should adopt protocols that are transparent, flexible and are subject to frequent changes as new guidance is obtained.
The EEOC Guidelines and COVID-19 Testing
The EEO laws, including the Americans with Disabilities Act (ADA) and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. The EEOC issued guidance stating employers cannot require workers to undergo Coronavirus Disease 2019 (COVID-19) antibody testing (as distinguished from testing for the COVID-19 virus itself), EEOC Issues Updated Guidance on COVID-19 Antibody Testing . Antibody testing can also produce useful information about populations that may have some level of immunity from the virus, but mandating such testing violates the ADA.
In announcing its new guidance, the EEOC cited Centers for Disease Control and Prevention (CDC) guidelines, which state that the results of antibody testing “should not be used to make decisions about returning persons to the workplace.” The CDC made this decision based on a current lack of data on COVID-19 antibodies, including the degree of immunity antibodies may provide. Additionally, some antibody tests may produce false positives or false negatives, and some individuals who have been infected with COVID-19 may not develop detectable antibodies, or antibodies may decrease over time to undetectable levels, further reducing the reliability of these tests, at least as indicators of risk for future infection.
Employee Screening Procedures
Employers (and their vendors on their behalf) may perform COVID-19 medical screening for as long as the EEOC deems COVID-19 a “direct threat”. Thus, it makes prudent business sense for employers to have a policy in writing that outlines how employees will be screened in order to report to work. If the practice is applied consistently, an employer may ask an employee to be tested for the virus that causes a COVID-19 infection before allowing the employee to return to the workplace. However, not everyone will have immediate access to testing. The CDC issued interim guidance on Ending Home Isolation, suggesting that symptom-based screening strategy is sufficient to identify when an individual with symptoms may return to work. Based on this CDC guidance employers may want to allow individuals to return to work without requiring a test. Antibody testing, however, is not currently permitted under the ADA.
The Occupational Safety and Health Administration (OSHA) has issued guidance for reopening businesses that recommends each establishment conduct a hazard assessment for all jobs. It also clarifies OSHA's positions on temperature checks, coronavirus testing and face masks.
Employee Daily Prescreening Approach
According to the CDC, testing individuals with signs or symptoms consistent with COVID-19 Employers may consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) to identify employees with signs or symptoms consistent with COVID-19 before they enter a facility, in accordance with the FAQ’s for Businesses. The takeaway is that the ADA does not interfere with employers following the advice from the CDC and other public health authorities on appropriate steps to take related to the workplace. It should also be noted that while employers are encouraged by the CDC and the EEOC to ask employees about recent travel, exposure, and symptoms of COVID-19, any medical information that is disclosed as part of this questionnaire should be treated as confidential under the ADA. Therefore, if you are not utilizing any type of questionnaire or are using a non-HIPAA compliant paper or electronic forms-type system as a questionnaire, it is wise to rethink that policy before a regulatory compliance agency requests documentation.
Employee Self Reporting and COVID-19 Screening Apps
Employers may also require employees to proactively self-identify in the event they experience any of the CDC specified COVID-19 symptoms. Employees may be required to complete a self-report that they provide to the employer before arriving at work each day. Many smaller employers have used paper surveys and online forms to prescreen employees prior to showing up at the office, but this becomes cumbersome and risky. More robust screening tools provide HIPAA-compliant apps for employers and a monitoring dashboard for employees. Regardless of the approach used, employers must be sure that they are consistent with policy and protocol enforcement.
The Good2BeBack App is the most accessible, reliable, effective, affordable, easy-to-use, infectious-disease communication/reunification, HIPAA-compliant system on the market today utilized by all types of organizations. Given the complexities of the laws and the virus, it would behoove you to contact them to evaluate and adopt their inexpensive, secure, efficient solution sooner than later.
The communication of an employee who has tested positive for COVID-19 should be handled with consideration to the privacy provisions of the EEOC and the Health Insurance Portability and Accountability Act (HIPAA) and ADA. Even though OSHA does not require employers to notify other employees if one of their coworkers gets COVID-19. However, employers must take appropriate steps to protect other workers from exposure to SARS-CoV-2, the virus that causes COVID-19, in the workplace, which may involve employee notification.
The CDC recommends employers inform employees that have been exposed to the virus and their possible exposure to a positive coworker in the workplace. However, the CDC reiterates that employers need to maintain confidentiality and comply with applicable federal, state and local laws.
I foresee the states prescribing exhaustive notice requirements to inform employees of exposure.
New California Law AB 685
Starting January 1, 2021, California AB 685 imposes new notice and reporting obligations for COVID-19 workplace exposure. Employers are required to notify workers within one (1) business day of receiving notice of a “potential exposure” to COVID-19. The law mandates notice requirements in the event of a COVID-19 exposure in the workplace, which includes providing written notice to “all employees” who were at the worksite within the infectious period who may have been exposed to the virus. AB 685 also enhances reporting requirements to local health authorities in the event of a COVID-19 outbreak in the worksite.
OSHA recently issued a news release reminding employers that they cannot retaliate against employees that report unsafe conditions during the COVID-19 pandemic. It is illegal for an employer to fire, demote, transfer or otherwise retaliate against a worker who complains to OSHA and uses their legal rights. These anti-retaliation policies ensure that no adverse action is taken against an employee who raises workplace safety and health concerns.
The Department of Labor (DOL) also enforces anti-retaliation policies that are related to COVID-19 including expanded leave benefits and other employee protections. In addition to federal laws, many local jurisdictions have also enacted anti-retaliation measures to protect employees who have encountered some of the devastating aspects of COVID-19.
With so many challenges in the workplace, one thing is for certain, employers must develop new protocols and policies to reduce exposure to COVID-19. Transparency is key here to explain why certain employee’s standards of conduct and safety protocols are being put into place. Employers should also be mindful that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
After all, we are all in this together, and how we handle challenges is how we show our character!
Carol Flynn is president of HR Solutions Inc and is a subject matter expert in sexual harassment, organizational development and workplace integration. She has over 25 years in human resource management and is a professor and educator with a Master of Arts in Industrial/Organizational Psychology; life-time certified senior professional in human resources (SPHR); certified EEOC trainer; and past investigative member of the Florida Bar Grievance Committee (FBGC). For further information, see www.hrsolutionsfl.com.