As California slowly opens back up amidst the ongoing COVID-19 pandemic, employees are left wondering how they will be protected from the virus if they are required to report back to work. The Center for Disease Control (CDC) recommends that employers in non-healthcare workplaces incorporate testing, combined with symptom screening and contact tracing, as part of a comprehensive approach to timely identify infected workers so that actions can be taken to slow and stop the spread of the virus. As explained in our prior blogs, employers can require COVID-19 testing to determine whether employees are currently infected but cannot require COVID-19 antibody testing to (not-so-reliably) determine whether an employee was previously infected.
Can I Get Fired for Refusing Covid-19 Testing?
Assuming the employer may properly require a test in the first place, the answer depends on the reason for refusing testing. If an employee objects to testing for religious reasons, or because of a disability or disabling medical condition, then existing anti-discrimination laws may require the employer to accommodate the employee. If the employee’s objections are purely personal, then the employer could be justified in disciplining the employee, because such personal objections are not protected by anti-discrimination laws.
These rules would not apply to any mandatory antibody testing because antibody testing is not a useful method of infection control in the context of workplace testing.
Can My Employer Require Me to Get Tested Daily?
Employers may properly take certain daily steps to monitor employees for potential coronavirus infection. For example, employers may take employee temperatures or administer a daily questionnaire about COVID-19 symptoms or exposure. Administering a clinical test every day would probably be considered excessive for most workplaces, although certain workplaces that pose substantial risk for community spread might warrant testing of some or all employees on a routine basis.
Some commercially available antibody tests have been advertised as giving rapid results, so an employer might want to use such tests on a daily basis. The CDC and other health experts question the reliability and usefulness of antibody testing, and, even if it proves accurate, antibody testing does not necessarily indicate whether an employee has or might transmit coronavirus. Because of these two facts, antibody tests are not useful to an employer’s desire to mitigate coronavirus community transmission, so employers cannot require employees to take antibody tests on any basis.
How Many Times Can My Employer Require Me to Get Tested?
The answer depends on the type of test administered by the employer. Based on current guidance from the Equal Employment Opportunity Commission and the Centers for Disease Control, employers may never use a so-called antibody test to detect SARS-2-CoV infection because the test does not provide information that is useful to employers.
Tests that detect active coronavirus infections are most useful for controlling COVID-19 community spread in the following scenarios: (1) testing employees who show symptoms of COVID-19 infection; or (2) testing employees who have been potentially exposed to COVID-19. As of July 20, 2020, the CDC stopped recommending the use of tests before employees return to work after a confirmed coronavirus infection. Instead, CDC suggests ending self-isolation 10 days after an employee receives a positive test result, at which point the employee could safely return to work without being tested.
Some workplaces might warrant routine testing if, for example, the workplace creates a high risk of coronavirus transmission because the workers are housed together, or work in close proximity under situations where social distancing is not practical. Workers in essential industries might also be properly subject to routine testing because catching potential outbreaks in their infancy is more important to such workplaces. In any case, the details of the particular workplace would determine the proper scope of routine testing.
If My Employer Requires Me To Take A COVID-19 Test, Do I Need To Pay For It?
Generally, the FFCRA and CARES Act require group and individual health insurance plans, including employer health plans, cover COVID-19 detection and diagnostic testing. Under both Acts, the following tests would be covered without cost-sharing by the employee:
- Tests approved by the Food and Drug Administration
- Tests provided by labs on an emergency basis
- State-developed tests
- All other Health and Human Services approved tests
This also requires that plans and issuers must cover multiple diagnostic tests and facility fees/related items to the COVID-19 testing (e.g., chest x-rays, and other flu tests). Additionally, all other comprehensive private health insurance plans must cover items and services relating to COVID-19 diagnostic testing that were furnished on or after March 18, 2020 through the end of the public health emergency. However, an employee’s insurance was only required to cover the cost of testing when ordered by the individual’s health care provider for diagnostic purposes, as determined by the individual’s healthcare provider. Furthermore, the Department of Human Services has stated that “testing conducted to screen general workplace health and safety … is beyond the scope of … the FFCRA.”
When Does My Employer Have to Pay For My Testing?
If an employee is not covered by an applicable group insurance plan, the EEOC’s guidance regarding the ADA may require an employer pay for the COVID-19 test. Under the EEOC’s guidance, an employer may require an employee, who the employer reasonably believes will pose a “direct threat” to the workplace, be examined by an appropriate health care professional. “An employer also must pay all costs associated with the employee’s visit(s) to its own health care professional.”
Does My Employer Have to Pay For The Time It Takes To Get Tested and the Time It Takes To Wait For My Results?
The FLSA informs employers that, “[w]henever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” As such, an employer may be need to pay you for the time it takes to get tested and wait for results.
Can My Employer Share my Health Information such as COVID-19-Related Symptoms or Test Results? What if They Wrongfully Disclose this Information?
In short, aside from alerting other employees of possible exposure to the virus, all other information must remain confidential.
Under both federal and California law, employers are required to keep confidential all employee health information obtained, including keeping employee medical files separate from personnel files to lessen the risk of inadvertently disclosing confidential health information. As this relates to COVID-19 and the CDC-recommended symptom screening, testing, and contact tracing, the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have issued the following guidance on the types of information that employers must keep confidential:
- An employee's statement that he or she has or suspects he or she has COVID-19;
- Any COVID-19 symptoms the employee is experiencing, including the employer's notes or other documentation from questioning an employee about symptoms;
- An employee’s body temperature;
- The reason for an employee’s absence if due to illness or other medically related reason; and
- All COVID-19 test results.
If an employee tests positive for or is suspected to have COVID-19, the employer may notify potentially affected employees, but only in a way that does not reveal the employee’s identity or any other identifiable information. The employer may, however, disclose the name of a COVID-19 positive employee to a public health agency.
If your employer wrongfully discloses your confidential health information, they may have violated the federal Americans with Disabilities Act or state law. For example, California's Confidentiality of Medical Information Act (“CMIA”) prohibits employers from using, disclosing, or knowingly permitting its employees or agents to use or disclose employee medical information without a signed authorization, subject to several statutory exceptions. If unauthorized disclosure occurs, an employee who has sustained economic loss or personal injury may recover compensatory damages and legal costs, and a limited amount of punitive damages and attorneys’ fees. However, based on the CMIA’s definition of “medical information,” it only applies to information “in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor.” Arguably, disclosure of COVID-19 test results received from a health care provider would qualify while symptoms or body temperature obtained by the employer during preventative screening would not.