Can My Employer Ask Me to Get Tested for COVID-19?

At the height of the shutdown, approximately 40 million Americans were out of work. With the economy in various stages of reopening, millions of employees are wondering if their employers will require them to get tested for the coronavirus in order to come back to work. Millions of others may be asked to test on an ongoing basis, even if they were never furloughed, because testing is far more widely available now. Can they do it?
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The Families First Coronavirus Response Act (FFCRA) created temporary rules for employers regarding Coronavirus testing. The rules regarding COVID-19 tests for essential workers differ from testing guidelines for non-essential workers. Can employers ask employees in non-essential jobs to get tested for COVID-19? The short answer is: yes, especially if they are asking you to return to work. However, there are different types of tests, and not all are essential or required for employment purposes. Employers need to follow labor laws when asking employees to take tests, stay home if they’re exhibiting symptoms, or return to work.

Which employers are covered by the FFCRA?

The FFCRA applies to private employers with fewer than 500 employees, primarily because they are able to receive assistance through the Paycheck Protection Program (PPP), as well as public employers. Employers with more than 500 employees must still grant leave to employees who are affected by COVID-19 but are not considered part of the Paycheck Protection Program.

When can an employer ask you to take a coronavirus test?

Employers can’t request that employees take COVID-19 tests to “prove” they have coronavirus if they’ve taken paid sick leave and expanded family and medical leave. When it’s time to return to work, employers may request that employees be symptom-free. The CDC has changed its strategy for managing employees that have been under isolation due to COVID-19. Employers can ask employees to take COVID-19 antibody tests before returning to work as long as they apply the request equitably.

What criteria does the CDC advise for allowing employees to return to work?

If employees are showing symptoms of COVID-19 or have been exposed to COVID-19, the CDC recommends the following procedures for a safe return to work:

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Home isolation should be 7 to 10 days after symptoms appear in someone who has symptoms of COVID-19.
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Home isolation should also be 7 to 10 days for people without symptoms (asymptomatic) who test positive for COVID-19.
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Employers can also allow employees to return to work with a doctor’s release or a documented negative COVID-19 test.

What different coronavirus tests are available?

The CDC has identified several ways coronavirus testing can work, including COVID-19 antibody tests, and tests to discover the active infection. Coronavirus testing for active infection is a viral test, also called a nucleic acid test, which involves taking respiratory samples with a swab inside the nose, and is typically referred to as a PCR test.

Antibody tests look for signs that the body’s immune system has reacted to a previous infection with SARS-CoV-2, the coronavirus that causes COVID-19. A positive antibody test doesn’t necessarily mean that you have had SARS-CoV-2. You may have had a similar infection in the past. Some people have positive COVID-19 antibody tests without ever experiencing COVID-19 symptoms.

Are rules different for essential workers?

The protocols for COVID-19 tests for essential workers who have been on the job throughout the crisis are slightly different from the rules for non-essential workers. Most non-essential workers are now returning to work under their state and local government phased re-opening guidelines. Essential workers have been continuing to work under CDC guidelines throughout the COVID-19 pandemic. Essential employees without symptoms have been working under the following guidelines:

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Pre-screening before work, including temperature and symptom checks
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Regular monitoring while at work
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Wearing masks at all times in the workplace
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Social distancing at work
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Regular cleaning and disinfecting protocols

Any employee who becomes sick while at work should be sent home immediately, according to CDC guidelines. This goes for essential and non-essential employees.

The CDC has developed an antibody serology (blood) test that can detect antibodies for SARS-CoV-2 and a variety of commercial antibody tests are available, with many more in development. Anyone who has tested positive for COVID-19 and been hospitalized can get their blood tested for antibodies now through their hospital. COVID-19 antibody tests, initially restricted, are now widely available, though quality varies.

Until the FDA has officially approved these tests under normal procedures (as opposed to the Emergency Use Authorizations that were used in the initial phases of the outbreak), people and businesses are encouraged to only work with companies that provide testing through reputable, well-established, national laboratories. (NOTE: Health Street’s tests are sent to certified national labs only).

Which industries need antibody tests?

Healthcare professionals are accustomed to getting annual antibody tests to ensure immunity to various diseases for which vaccines are already available. It is widely assumed that COVID-19 antibody testing will become part of healthcare workers’ requirements going forward. Employees in other industries may also need to get tested, including in food services and the hospitality industry. Teachers and child care workers may follow suit. Employees and employers alike should keep in mind that a COVID-19 antibody test could be negative, but a person could still have SARS-CoV-2 because it takes at least one to two weeks for the body to develop antibodies to the virus.

 

Citations

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“Families First Coronavirus Response Act: Questions and Answers.” U.S. Department of Labor, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
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“Answers to the Most Common Coronavirus Questions.” Society for Human Resource Management (SHRM), https://www.shrm.org/hr-today/news/hr-news/pages/coronavirus-faqs.aspx
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“Coronavirus Disease 2019 (COVID-19): Testing.” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/testing/index.html
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“Families First Coronavirus Response Act: Employee Paid Leave Rights.” U.S. Department of Labor, https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
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“Discontinuation of Isolation for Persons with COVID -19 Not in Healthcare Settings.” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html
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“Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html
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“Test for Past Infection.” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/testing/serology-overview.html
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Zaller, Anthony. “EEOC Issues New Guidance Permitting Employers To Test Employees For COVID-19 Prior To Working.” California Employment Law Report, 23 April 2020, https://www.californiaemploymentlawreport.com/2020/04/eeoc-issues-new-guidance-permitting-employers-to-test-employees-for-covid-19-prior-to-working/
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“COVID-19: Considerations for Employee Testing.” National Law Review, 24 March 2020, https://www.natlawreview.com/article/covid-19-considerations-employee-testing
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“Serology Testing for COVID-19.” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/lab/serology-testing.html
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“FAQs on Testing for SARS-CoV2.” U.S. Food & Drug Administration, https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-testing-sars-cov-2#serology
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Occupational Health

Read Health Street's informative articles about occupational health testing.