Requiring COVID-19 tests at work can be tricky — here are 4 ways to comply with legal guidelines and ensure the safety of your employees

Make sure you're aware of what you can legally require as a employer.

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• If you're thinking of adding mandatory COVID-19 tests, temperature checks, or health surveys as workers come back to the office, there are some things you should keep in mind. 
• You or your insurer must cover the costs of any mandatory tests, so avoid unnecessary testing that won't directly impact the safety of your workplace. 
• Keep your employees' health results private by staying organized and secure — the Equal Employment Opportunity Commission (EEOC) limits employers from disclosing any identifiable information about a patient, unless they've given their consent. 
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As you and your employees return to the office, you may be considering whether to adopt COVID-19 testing or mandatory temperature checks and health surveys. Tread lightly — especially if you're planning to require COVID-19 testing. Businesses must comply with a raft of health regulations and protect employee privacy.

In April, the Equal Employment Opportunity Commission (EEOC) and the US Department of Labor authorized the practice of collecting medical information such as taking temperatures. The government also approved conducting COVID-19 tests in the workplace, which employers typically couldn't do. "I think there is a general need to know that the person walking into your facility does not have a fever currently," said Erin McLaughlin, labor and employment attorney at Pittsburgh-based law firm Buchanan Ingersoll & Rooney. Testing in general, she says, and keeping track that employees who are coming into the workplace are healthy may give your business a layer of liability protection in case someone does get sick.

And that may still be true, regardless of new guidelines from the Centers for Disease Control and Prevention (CDC), which on August 24 announced that people who do not show symptoms of COVID-19 and have not been in close contact with someone known to have a COVID-19 infection need not get tested. Previously, the CDC recommended testing for COVID-19 regardless of a person's symptoms. The shift is controversial.

"It doesn't seem consistent with the information the organization is putting out, considering roughly 40% of individuals [with COVID-19] are asymptomatic," said Sachin Nagrani, a physician and medical director at Heal, a company that offers primary care services and telemedicine. Even so, he says, it's a good idea to err on the side of caution and do the tests you need to do. 

Here are some other useful considerations to keep in mind when starting to test at work:

1. Expect to shell out

If you require testing for employees to perform their job, then you or your insurer must pay the cost; you can't pass it on to employees. The Americans With Disabilities Act (ADA) states that employers must cover the cost of medical expenses associated with bringing a healthcare professional to the office to conduct health checks or equipment expenses such as contactless thermometers.

When it comes to cost, it largely depends on the state. Generally, insurers don't have to cover workplace COVID-19 testing that an employer does to screen for infection among employees. Insurers are required to pay for tests a doctor orders, or for testing those who have been in contact with an infected person. Though in California, for example, insurers are required to cover workplace testing regardless of symptoms for essential workers. The Wall Street Journal reported that one company in Connecticut pays an urgent care center more than $30,000 a month to test 150 employees biweekly for COVID-19.

2. Keep information private

If you choose to conduct contact tracing, and inform employees that they may have been exposed to the virus by a coworker, only limited information can be shared, according to guidelines from the EEOC. The vulnerable person should be told that he or she has come in close contact with someone who has been diagnosed with COVID-19; when and where that exposure occurred; as well as when the coworker was diagnosed. But someone's name or any identifiable information cannot be disclosed (except to a public health agency) unless the individual provides consent in accordance with the Health Insurance Portability and Accountability Act (HIPAA).

3. Get organized

The EEOC and the ADA require employers to maintain any medical records in relation to COVID-19. All medical information has to be stored separately from the employee's personnel file. This includes employees' statements that they have the disease or suspect they have the disease; it also includes an employer's notes, along with other documentation from questioning an employee about symptoms. If you require all employees to have a daily temperature check before entering the workplace, those records must also be kept confidential. Be careful about requesting information, because it may entail obligations in terms of medical record requirements, says McLaughlin. Some records may have to be retained for up to 30 years. Make sure you understand what records to request and the obligations associated with them. 

"It limits the chances that you're invariably gonna walk into a violation here or there," said McLaughlin. A single record-keeping violation is not a big concern, but it could become a problem if an employer has a second ADA claim. 

As for the digital medical files you do retain, privacy protection is utmost. Kelly DuFord Williams, founder and managing partner at Slate Law Group, advises clients who are digital, such as those logging temperatures on spreadsheets, to use a password-protected box file or a Dropbox file so you can show you've maintained a level of confidentiality when it comes to both the ADA and the EEOC. 

4. Avoid unnecessary tests

If you're considering requiring additional tests, such as antibody testing, hold off. Requiring antibody testing — often referred to as an immunity passport — before allowing employees to reenter the workplace is not allowed under the ADA.

The results of such a test don't readily impact the safety of your business or employees' ability to do their jobs. What's more, the CDC says it is not clear whether testing positive for antibodies provides any long-term protection from COVID-19. Finally, if an employer takes action based on an antibody test that adversely affects or impacts an employee's ability to do their job, there is the potential for a claim.

McLaughlin advises that while there's uncertainty about the benefit of antibody testing from a scientific perspective, there's little to no benefit from an employer's perspective. "Maybe you're less concerned that the employee will become infected in the future," she said, referring to a reason why an employer may require the tests, "but that comfort level is probably a little bit misplaced given what we currently know about the tests."

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