Employee Virus Testing Could Spark Class Action Claims

As states consider relaxing their stay-home orders, a national discussion has centered on the use of molecular and serological testing for COVID-19 as a means to safely reopen the country. Employers exploring the use of testing as a component of their return-to-work protocols need to be mindful of the potential risks associated with such testing.

While testing could potentially be a tool for enhancing workplace safety and reassuring a nervous workforce, its potential to generate class and representative litigation should not be ignored. Accordingly, employers and their counsel should take care to understand the fast-changing landscape of legal authority for pandemic-related testing, and to be thoughtful in implementing such protocols for their employees.

Permissibility of Testing

Prior to the COVID-19 pandemic, requiring employees to submit to medical testing to enter the workplace was generally impermissible. The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.

A “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Civil rights laws in many states are similar.

Since the pandemic, the U.S. Equal Employment Opportunity Commission has updated its guidance, initially advising that employers may take employees’ temperature as a tool to screen for COVID-19 symptoms, and more recently on April 23, providing that employers may “administer a COVID-19 test (a test to detect the presence of the SARS-CoV-2 virus) before permitting employees to enter the workplace.”

In doing so, it reasoned that an individual with the virus would pose a direct threat to the health of others. The EEOC, however, cautioned that the tests must be accurate and reliable and advised employers to review guidance from the U.S. Food and Drug Administration and Centers for Disease Control and Prevention as to the accuracy and safety of such tests. The burden is on the employer to demonstrate that the tests it administers are accurate and reliable.