If you’re one of the countless numbers of Americans getting called back to work this month, you may face some significant changes to your workplace. (We’d encourage you to share your experiences with us!) Across the country, some companies are installing mandatory coronavirus testing for employees.
Is this a violation of privacy? Is it allowed? What about antibody tests? We break down what you need to know.
Can my employer test me?
First: There are two kinds of tests. Both the respiratory test (nasal swab) and the antibody test have problems as far as accuracy. Beyond that, if the results are correct, experts disagree on what the results mean. If you have a positive respiratory test, that’s pretty clear: You’ve got it. But if you test negative, because of the high error rate, if you have with symptoms, most doctors will say you should still act like you have it. With the antibody test, same problem: Positive probably means positive, but false positives are clearly possible.
In late April, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers on keeping employees safe and enabling widespread testing on job sites while protecting employees’ rights under the Americans With Disabilities Act (ADA), the Civil Rights Act, and other anti-discrimination laws that protect employees’ medical privacy.
According to the EEOC, employers have the right to ask employees about COVID-19 symptoms, take employees’ temperatures, and require a doctors’ note for employees to return to work. Employers may also administer a COVID-19 test to employees to see if they have an active infection, the EEOC states, as an active coronavirus case could pose a threat to other workers.
The EEOC also cautions about the “false-positives or false-negatives associated with a particular test” and specifies that employers should still make sure social distancing, handwashing and other public health measures are in place to prevent the spread of the disease.
What’s still unclear about what my employer can and cannot do?
The EEOC has not made specific guidelines for employers administering antibody tests, which may help determine if someone has been infected by the coronavirus. The government’s guidelines also lean heavily on FDA approval of tests; none of the serology tests available on the market are currently thoroughly vetted by the FDA.
This doesn’t mean that the EEOC won’t approve antibody testing, or that employers won’t try to test workers for antibodies within government guidelines. “The liberal basis for the guidance would appear to allow for voluntary antibody (serology) testing,” law firm Foley & Lardner wrote in their employers’ guidance on testing.
While the science around these tests is still murky – and research indicates they could be highly inaccurate – antibody tests have been widely-discussed as a means to create “immunity passports” as a way to figure out which citizens are safe from exposure and as a way for workers to return to work.
Regarding serology testing in the workplace, “for now, employers should evaluate the use of antibody testing with greater caution,” law firm Ogletree Deakins writes in their legal guidance.
As for the future, law firm Fox Rothschild predicts:
Under current EEOC guidance, an employer would not be permitted to force “high risk” workers who test negative for antibodies to stay home unless the employer can establish after an individualized assessment that the risk of substantial harm cannot be reduced or eliminated by reasonable accommodation…Given all of these factors, it is unlikely that the EEOC would authorize employers to require antibody testing that at best establishes an employee’s presence in the workplace poses no direct threat to her own health.
It is possible that, once antibody testing is more reliable, widely FDA-approved, and shown to establish that an employee has immunity protection for a substantial period of time, the EEOC will authorize its use by employers on a voluntary basis. We are not there yet.
But Seema Mohapatra, a law professor at Indiana University, predicts that an “immunity passport” could violate the Americans With Disabilities Act. “Since the lack of immunity is not a direct threat to the workplace, employers have to follow ADA guidance” in allowing non-immune employees to return to work, she writes in The Conversation.
“Allowing only people with immunity – or evidence of past infection – to work would disadvantage those who haven’t gotten sick or those without the antibodies to prove it,” Mohapatra continues. “It’s as if, in the eyes of their employer, their lack of infection constitutes a disability. The inequality that immunity passports could foster in these situations may be illegal under the ADA.”
What big companies are starting testing now? How are they implementing it?
The Wall Street Journal reported this week that Smithfield Foods Inc. – which had major outbreaks in its meat processing facilities – Ford Motor Co. and UnitedHealth Group Inc have begun using a combination of clinic, onsite and at-home testing on its employees.
Amazon this week said it was directing employees from its other technological efforts, including the Kindle e-reader, towards scaling up its own internal testing unit for workers. It has already set up pilot testing sites in some of its warehouse locations. Per the Journal, Walmart is exploring setting up testing for its employees.
However, most big employers are only preparing to use temperature checks or to test workers for PCR tests for active infections; many have not specified whether they would perform antibody tests in the future. Despite this, test providers are getting ready to serve businesses with antibody tests: both Quest and LabCorp have launched special employer programs – which both companies call their Return to Work initiatives – that offer antibody testing for employees.
At one small medical office in the New York area, employees were tested for antibodies as they returned to work. Several tested positive, though they did not have symptoms or anyone in the household who appeared ill. Others did not show antibodies. “The CDC and Board of Health suggested those with antibodies were less likely to get sick if they were in contact with a patient with Covid,” one employee wrote. “That’s how we decided who would work with patients, and who would work at the front desk, limiting their exposure.”
Now the whole staff is being tested with the nasal swab on a rotating basis for fresh infections.
At that office, one employee had a recent transplant, meaning she is immunocompromised, and one recently had a baby. Neither has returned to work.
What about temperature checks?
Per EEOC guidelines, the use of temperature checks to see if an employee has a fever has been instituted in many areas. This is not foolproof, of course; many Covid-19 patients don’t have a fever at all, or don’t have a fever until the disease becomes active. Scientists are saying that patients might be at their most infectious after exposure to the virus and before they have active symptoms.
What about worker’s comp?
Can you get worker’s comp for coronavirus contracted on the job? Again, this is a moving issue that depends on where you live – and may shift as more and more people contract the virus onsite at work.
According to the National Council on Compensation Insurance, an insurance rating and data bureau, it’s unclear whether workers who contract coronavirus on the job are eligible for workers’ comp.
“While workers compensation laws provide compensation for ‘occupational diseases’ that arise out of and in the course of employment, many state statutes exclude ‘ordinary diseases of life’ (e.g., the common cold or flu),” the organization writes. “There are occupational groups that arguably would have a higher probability for exposure such as healthcare workers. However, even in those cases, there may be uncertainty as to whether the disease is compensable.”
Still, some workers are struggling to get compensation from insurance companies. In New York, many frontline workers say they are being asked by insurance companies to prove that they contracted the virus on the job – with some companies even asking workers to identify a specific patient they came into contact with. In Boston, meanwhile, city councilors heard from healthcare workers this week who said some of their employers claimed they contracted coronavirus from within their communities, rather than from direct contact with patients.
UPDATE: We have corrected the reference to NCCI. It is not a trade group, but an insurance rating and data bureau.
