COVID-19 Testing and a Return to the Workplace
In all likelihood, most of you reading this will be required to undergo a test for COVID-19 in order to return to work. This test will allow your employer to decide, based on the test results, if you are able to return to work. Upon your return to work, there will be a flurry of litigation, complaints, and objections to this process as false test results, both positive and negative, become a concern. In the near future, you may see this type of testing expand to any sort of travel for your position. This mandatory testing might also be done regularly or randomly. The government may even expand this to various associations that govern sports.
The Equal Employment Opportunity Commission (“EEOC”) has issued guidelines during the pandemic for employers. These guidelines include allowing an employer to test their employees for the virus before allowing the employees to return to work. The EEOC’s guidance says that the ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, the EEOC says that employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Consistent with the ADA standard, the EEOC says that employers should ensure that the tests are accurate and reliable. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the EEOC notes that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
This is a departure from existing law as this guidance is a direct result of the pandemic. This issue, thus far, has not been challenged in court. Various federal and state agencies have issued proclamations on this issue as well but it’s a rapidly evolving legal area.
If you refuse the COVID-19 test, your employer may choose to terminate you or take some other form of disciplinary action. If you are terminated because you refused a COVID-19 test, you may be barred from unemployment benefits. This issue has also not been decided yet, but a close analogy can be drawn between workplace drug testing and unemployment benefits.
In New Jersey, employees may be disqualified from receiving unemployment benefits on the grounds of simple workplace misconduct, such as failing or refusing to take an employer drug test. See N.J.A.C. 12:17–10.8 and 10.9. However, employers must have a written drug test policy that has been conveyed to its employees for this disqualification to be rendered effective for drug testing.