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Until the coronavirus came along, employers were prohibited from ordering employees to undergo a medical examination unless it was directly related to their work.
The specter of COVID-19, however, has changed all that. In April, the federal Equal Employment Opportunity Commission revised its guidelines so that employers may now require employees to test for the infection as a requirement for work even if they're not showing any symptoms.
In allowing employers to test for COVID-19, the EEOC also reminded them that all medical information, including results from temperature checks, must be confidential. However, if an employer learns that an employee has COVID-19, they may report the name of that person to a public health agency.
As employers strive to keep their workplaces free of COVID-19, they would seem to have a motivation to test. But the deeper you dive into the question of COVID-19 testing, the murkier it gets.
As businesses continue to reopen around the country, many employers are now taking employees' temperatures when they arrive for work. As we've learned by now, however, many coronavirus carriers don't appear to be sick — they don't run temperatures or show any symptoms — so workplace temperature checks are far from a cure-all.
To get a better handle on workplace health, employers need to rely on tests. Ideally, employers would administer an inexpensive daily saliva test that could produce reliable results in minutes. But we are far from that ideal.
Employers have little guidance from the federal government on testing, and they must compete for the tests with health care providers and state governments. They must identify which tests are reliable — not all are — and then figure out a plan for how to provide the tests and how to pay for them.
“It's the Wild West out there when it comes to testing," Scott Oswald, managing principal of the Employment Law Group, which specializes in workplace issues, told Pew Stateline. “There really is no standard at all, and employers are left to come up with decisions about testing on their own."
Amazon recently announced that it intends to begin testing workers every two weeks and build its own testing labs, but that level of commitment has been rare thus far among employers. In May, fewer than 5% of American employers responding to a survey said they intended to conduct either antibody tests or diagnostic tests.
In the absence of federal guidance and a general uncertainty about workplace testing, many employers appear to be playing a waiting game, according to Paycor, a human resources payroll and software company.
Uncertainty is one thing. Cost is another. A recent study by the Wakely Consulting Group estimated the cost of diagnostic and antibody testing all Americans could be as much as $44 billion.
"Any testing effort done by employers would be costly," Forbes reported on June 10, "which is why some analysts say companies are unwilling to begin testing their workers or are slow to implement such diagnostic testing strategies."
Fears of liability are another reason for the cold feet. Oswald, the attorney who used the "Wild West" analogy, told Pew Stateline: “An employer's going to be on firm [legal] ground if they choose not to test but they meet the other CDC guidelines. That's why this is so difficult, because once they step into the realm of testing, the employer's creating liability for itself."
Summing it up, then, the answer to the question in the headline is: Yes, employers can require employees to test for COVID-19.
The answer to the question of whether they want to, though, may be something else.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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