By Jeff Jones
Special to the UCBJ
As employers consider whether the COVID-19 vaccination should be mandatory for employees, issues arise regarding what to do when employees refuse the vaccine, or when they have legally-protected reasons for declining the vaccine. In addition, while most of the general population awaits access to the vaccine, some employers have implemented alternative measures to mandatory vaccinations.
In a recent Wall Street Journal article, it was reported that the Goldman Sachs Group and Netflix are both adding rapid, regular on-site COVID-19 testing for all employees as they physically enter the workspace, with CVS Health Corp. reportedly providing the tests, which provides results within just a few minutes. Other employers, such as Tyson Foods and Walmart (on a limited basis) have implemented periodic required testing of employees as well.
Employers may require employees to be tested for COVID-19 when such testing is “job-related and consistent with business necessity,” and in accordance with guidance from the CDC and the recently updated EEOC guidance at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Such tests must be accurate, reliable and must be administered in a manner that is nondiscriminatory and consistently applied across the employees who are required to be tested.
In addition, employers considering the “COVID-19 test upon entry” must also consider the implications under the Fair Labor Standards Act (as the time employees spend waiting for the test and results is arguably compensable time), medical record confidentiality considerations, and how to address test results. What happens if a positive result later shows to be a false-positive? How much can an employer rely on a negative test result? Employers should also review OSHA’s Guidance on Returning to Work, https://www.osha.gov/Publications/OSHA4045.pdf. Employers must also remember that permitted COVID-testing does not include testing for the antibody (which is different from a viral test) because antibody-testing does not meet the “job-related/business necessity” standard.
If an employee’s objection to testing is based on disability/medical or religious reasons, employers must provide some reasonable accommodation to the employee under the ADA, Title VII, and similar laws. Even with such testing, employers should continue to encourage social distancing, regular handwashing, and the use of other safety measures such as masks/PPE that may apply to the particular workforce. For employers who decide to mandate either testing or vaccinations, a well-drafted written policy and procedure, adhering to EEOC guidance and other applicable laws for compliance, is essential and should be implemented with guidance from employment counsel.