Now that construction is rebooting across the U.S., some contractors are wondering if they should set up on-site coronavirus testing for employees.
Employers can test employees for COVID-19 at work, and they can require a negative test as a precondition for an employee's return to work, according to attorney Gus Sandstrom, partner at Blank Rome. Notably, the U.S. Equal Employment Opportunity Commission (EEOC) has said that employers can test employees before permitting them to enter the workplace.
But whether every employer should test, and what that testing might look like in practice, is a much more complicated question. "Practically, there are a number of things that need to be thought through," Sandstrom said. "I'm not sure if this outweighs the positive benefits of testing."
Consider the realities of on-site testing
Employers first need to determine the reason for testing, Nancy Delogu, shareholder at Littler Mendelson, said.
According to the Centers for Disease Control and Prevention (CDC), there are two types of COVID-19 testing:
Viral tests that tell a person if they have a current infection; and
Antibody tests that tell a person if they have had a previous infection.
The ability to see whether someone is currently infected is likely to be more useful in the employment context, Delogu said.
Regardless of the type of test employers go with, testing should be conducted in a well-ventilated area, preferably somewhere private or that is sectioned off, said Debra Friedman, member of the firm Cozen O'Connor, who told HR Dive in an email statement that employers should pay to provide all individuals conducting the testing with personal protective equipment, as well as a touchless thermometer or scanner.
Employers must make sure any tests used are accurate and reliable, Laura Calhoun senior counsel at Clark Hill Strasburger, said in a statement. Employers may also decide to contract out the testing to an outside company, but if they choose to do so, they should thoroughly vet such companies, Calhoun said.
Bigger companies may have an easier time with testing logistics, Sandstrom said. For example, they could move testing to an on-site location that is less heavily used, or take advantage of large parking lots. Employers also must consider where medical waste will be disposed of, if necessary, and whether the testing will be mandatory.
All employers must consider how they will inform employees who test positive in a discreet manner — "employees don't want to be put into an awkward situation in front of their co-workers," Sandstrom said.
Testing alone is not enough
Because COVID-19 testing only provides results about a moment in time "you're not going to have any certainty going forward that the employee remains virus-free," Sandstrom said.
That's why testing on its own isn't a complete plan for returning employees to work, Delogu said. Employers will still need to implement social distancing requirements, as well as enhanced clearing measures, in line with state, local and federal government mandates and guidance.
This list of considerations for enforced social distancing is lengthy: Do desks need to be moved or spaces marked off so that employees sit far enough apart? How will social distancing be enforced in areas such as lobbies? Will there be rules for cleaning shared spaces?
"It's not something that can be done on the fly a few days before," Sandstrom said. "I think everyone has bought into the idea of distancing, but it's the kind of thing you easily forget when you're approaching someone to talk to them."
Temperature checks can supplement testing
Most sources recommended temperature checks as part of a reopening plan.
Both the Occupational Health and Safety Administration and the CDC recommend that employers send home employees who have a temperature of 100.4 degrees or higher, though some state or local orders on this subject vary, Calhoun said. "Employers are reminded that not all employees with COVID-19 run a fever; therefore, employees should also be asked if they are experiencing any symptoms of COVID-19 or have been in contact with someone with COVID-19," she added.
Temperature checks and questionnaires are the fastest way to test groups of employees for COVID-19 symptoms at present, Friedman said, due to the limited availability of tests and the delay that some patients experience in receiving their results. "Use of COVID-19 tests is expected to increase over time, however, as more employees return to work and the availability and reliability of the tests hopefully improve," she noted.
But employers also need to be careful about what they do with the information gathered from temperature checks, as it may pose confidentiality concerns, Delogu said. In its guidance, EEOC has said that an employee's record of fever or other COVID-19 symptoms would be subject to the confidentiality requirements of the Americans with Disabilities Act.
If an employee refuses to be tested, be consistent
Employees may refuse to take a COVID-19 test and, if this happens, employers must consider whether an employee has a valid medical or religious reason for the refusal and whether a reasonable accommodation is available, Friedman said. If the answer to both of these questions is no, an employer may refuse to allow the employee to work, she added.
"The employer has several options depending on what policy it has put in place for refusal," Calhoun said. If possible, the employer might decide to allow the employee in question to work remotely, Calhoun added, but the employer may also decide to discipline, terminate or allow the employee to resign. "The employer needs to be consistent in its response to a refusal to submit to testing."
Similarly, employers must be flexible to prevent discrimination against those who test positive for COVID-19 or who require an accommodation to return to work, Friedman said: "This includes not limiting employees' work assignments based on a perception of what they can and cannot do or may or may not want to do."
Lastly, testing is not an ideal option for every employer, Delogu said, although it may be particularly useful for those operating in environments that involve constant human contact or work with vulnerable populations.