Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Almost a year into the pandemic, a question that plagues the minds of many employers is how to reintegrate employees who have been exposed to COVID-19, while simultaneously safeguarding the wellbeing of coworkers and clients. The debate centers around whether employers can require employees to provide a negative COVID-19 test as a condition for reentry into the workplace and the legal consequences of doing so. For guidance, employers and agencies have turned to the Centers for Disease Control and Prevention (CDC) and its guidelines to shine some light on this murky issue. The answer, however, is not as clear-cut as one might think. In Puerto Rico, the dilemma was further complicated last week with Governor Wanda Vazquez Garced’s Executive Order 2020-087, which went into effect December 7, 2020.
CDC Guidelines on Testing
First and foremost, employees who have been exposed, or have suspected exposure, to COVID-19 should not consider returning to work until they meet the CDC criteria to discontinue home isolation. Littler recently published an overview of the new CDC quarantine guidelines. To determine when a worker can return to work, the CDC has recognized three strategies. First, a symptom-based approach whereby the worker can return 10 days after the onset of symptoms and 24 hours after their last fever and improvement in symptoms. Second, the time-based strategy, by which asymptomatic persons wait 10 days since their first positive COVID-19 test. Third, the test-based strategy, which could be considered for severely immunocompromised persons or for asymptomatic individuals who have had close contact with a confirmed COVID-19 case and wish to end isolation earlier than under the time-based approach. The CDC acknowledges that “[t]esting guidance is based on limited information and is subject to change as more information becomes available.” The CDC, however, has stated that “[e]mployers should not require an employee who had been diagnosed with COVID-19 to provide a negative COVID-19 test result or healthcare provider’s note to return to work.”1 (Emphasis added). The Puerto Rico Health Department has also echoed the CDC’s “should not” position with respect to the latter, test-based strategy. Instead, the CDC recommends employers rely on either a symptom-based or time-based approach when deciding when to end isolation and allow a return to work.
Employers opting for the test-based strategy need not be alarmed. Although it seems to have taken a hit, the test-based approach is still valid and the CDC continues to uphold its guidelines for its use in the workplace differentiating between acceptable testing methods, with antibody tests deemed inappropriate for return-to-work decisions and viral tests passing muster. Other regulatory agencies have also weighed in and acknowledged test-based protocols. For example, the Occupational Safety and Health Administration (OSHA) has sanctioned its use and has stated that “[n]either the OSH Act nor OSHA standards prohibit employer testing for SARS-CoV-2, if applied in a transparent manner applicable to all employees (i.e., non-retaliatory).” The Equal Employment Opportunity Commission (EEOC) is another example of an agency authorizing the test-based strategy. In its FAQ, the EEOC expressed that “an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.” Notably, the EEOC does not address testing to discontinue isolation or quarantine. The authorization of both OSHA and the EEOC stem in large part from the flexibility that the Americans with Disabilities Act (ADA) affords employers during a pandemic declaration.
The ADA and Employer Testing
The ADA, which covers employers with 15 or more employees, prohibits employers from making disability-oriented medical inquiries and examinations to employees unless such examination or inquiry is shown to be job-related and consistent with business necessity. The EEOC has published this comprehensive resource on the application of ADA during a pandemic declaration. For example, asking an employee if they have a fever is not a disability-oriented inquiry because the employee’s answer is not likely to produce disability-related information. A medical examination is defined as any procedure that yields medical information on a person’s health, such as using a thermometer on an employee. “Whether a procedure is a medical examination under the ADA is determined by considering factors such as whether the test involves the use of medical equipment; whether it is invasive; […] and whether it is given or interpreted by a medical professional.”2 Note that, as previously mentioned, the ADA’s protection does not apply if the inquiry or examination is job-related and consistent with business necessity. An inquiry or examination falls under this exemption when an employer has reasonable belief that: (a) the medical condition will impair the employee’s ability to perform the job required; or (b) the employee’s medical condition will pose a direct threat to others. “Direct Threat means 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.”3 The EEOC requires that “direct threat” determinations be based on current medical knowledge or objective evidence. As a result, to determine if a disease rises to the level of a “direct threat” the EEOC suggests that employers rely on the CDC’s assessment on the severity of the pathogen. The EEOC advises, however, that employers should be mindful of possible test kit shortages and that healthcare providers might be too busy during the pandemic to provide fitness certifications. Additionally, employers need to remain aware of developments regarding COVID-19 that might change the CDC’s guidelines on approved workplace measures. For example, a previously approved test method or strategy may be subsequently discarded by the CDC, and, therefore, cease to meet the “direct threat” standard as it is defined by the ADA.
An Additional Liability on the Home Front
Puerto Rico Governor Wanda Vázquez Garced recently announced a new executive order, effective from December 7, 2020 to January 7, 2021. Executive Order-2020-087 (“Executive Order”) in response to a sudden spike in COVID-19 infections and hospitalizations on the island. The measures enacted include: (a) a full lockdown for 24 hours on Sundays except for specific businesses deemed essential; (b) a “dry law” on the weekends; and (c) an extension of the lockdown from 9:00pm to 5:00am Monday through Saturday. Section 25 of the Executive Order is particularly important to employers, especially to those considering test-based strategies, insofar as it states, in part, that “negative molecular tests should not be a condition [for employees] to return to work, in accordance with the guidelines of the [P.R.] Health Department and the CDC.”4 This language effectively incorporates the CDC’s “should not” position on test-based strategies. Of note, Section 27 decrees that non-compliance with the Executive Order’s measures constitutes a misdemeanor with up to six months in jail and/or a $5,000 fine. Thus, while the EO 2020-087 does not outright prohibit test-based return to work strategies, it creates an additional, local, layer of potential exposure for employers in an already thorny legal and regulatory landscape.
An Unfixed Answer to an Approved Method
As for the question of whether test-based strategies in the workplace are legal, the short answer is: “They are still valid, for now.” The constant modifications to CDC guidelines, and the agency’s expressed preference for the other two approaches—impede a bright-line answer. Test-based strategies, however, are still recognized by the CDC, OSHA, and EEOC and protected under the ADA’s “direct threat” exemption. Employers should, therefore, note that implementing test-based strategies comes with its own challenges. Test kit shortages and the availability of healthcare personnel are realities that must be considered. Employers could offer employees an alternative return-to-work method, such as a time-based approach, to help mitigate the practical challenges of a test-based strategy. In addition, employers could adopt a risk-based approach whereby not all employees are required to provide negative COVID-19 tests. In the risk-based approach, an employer considers the risk of infection that the incoming employee poses to others, contemplates workplace circumstances, and applies a fitting, case-by-case return-to-work protocol. For example, an employee working in a large warehouse where social distancing is possible would likely pose less of a threat of infection than a staff member working in a busy kitchen. An employer might require a symptom-based approach for the former, while requesting a test-based approach for the latter. Additionally, the employer might consider implementing workplace “bubbles” to compartmentalize employees from each section. Similarly, the CDC recognizes that an employer may consider PCR COVID testing to discontinue isolation of employees who are severely immunocompromised. Both forms of the risk-based approach would alleviate the practical challenges of test-based strategies and, at the same time, provide proportional protection to other employees in the workplace.
In conclusion, employers have multiple CDC-approved approaches to choose from when determining their return-to-work protocols. Employers opting for the test-based strategy are protected under the ADA so long as it is carried out according to current CDC guidelines. A case-by-case analysis should therefore be performed taking into consideration the particularities of each workplace and the circumstances surrounding the employee. Until the CDC discredits test-based approaches, employers may continue to implement them in their return-to-work policies, but they must remain keen on CDC updates to ensure compliance and avoid exposure.
* José L. Maymí recently passed the Puerto Rico Bar exam and is now pending Bar admission.
1 CDC, General Business Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html.
2 EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act#13.
3 29 C.F.R. §1630(r)
4 Governor Vázquez Garced stated, however, in a press conference a “shall not” position on employer’s test-based protocols. See, La Fortaleza de PR, En vivo Gobernadora ofrece conferencia de prensa, Facebook (Dec. 04, 2020), https://www.facebook.com/fortalezaproficial/videos/1261857057528648 (at 00:37:50).