Board Converting News, June 15, 2020

To Test Or Not To Test (CONT’D FROM PAGE 6)


ees to “pass” such tests before returning to work could trigger liability for violations of disability discrimination laws under, for example, the Americans with Disabilities Act, or similar state or local statutes. Other challenges may include keeping employees’ medical information private, applying testing equally to all employees to avoid dis- crimination claims, and ensuring the testers are properly trained and protected. Employers should be aware of the limitations and potential risks associated with COVID-19 testing before implementing any testing programs for their employees. There are three primary test options which employers can use to screen their employees for COVID-19: Taking temperatures, Virus Testing, and Antibody testing: • Temperature taking refers to measuring an individual’s temperature, using a thermometer or a no-touch body scan or temperature-measuring app. If an individual has a fever (generally 100.4 degrees Fahrenheit, ac- cording to the Centers for Disease Control and Preven- tion (CDC), it may be a symptom of an infection, includ- ing a COVID-19 infection. Some businesses are taking the temperatures of their employees and visitors and prohibiting any individuals with fevers from entering their premises. • Viral tests (a.k.a. “molecular,” “diagnostic,” “PCR,” and “antigen” tests) detect active infections of SARS-CoV-2, the virus that causes COVID-19, using samples from an individual’s respiratory system (such as swabs of the in- side of the nose or throat). Certain tests are conducted at a testing site and results are available within minutes, while others must be sent to a lab for analysis. Others permit home collection but must be sent to a laboratory to analyze, which can take 1-2 days once the laborato- ry receives the samples. If a viral test comes back pos- itive, most likely the individual has an active COVID-19 infection and can possibly transmit the virus to others. Some employers are requiring their employees to ob- tain negative viral tests in order to come back to work. • Antibody tests (a.a. serologic tests) check a sample of a person’s blood to detect antibodies to the virus that causes COVID-19. Ideally, a positive result shows whether an individual has previously been infected with SARS-CoV-2, and subsequently developed anti- bodies to the virus. Some employers may consider re- quiring employees to test positive for SARS-CoV-2 anti- bodies before permitting them to return to work, on the theory that those employees are “immune” to further infection, and cannot infect others. Prior to the pandemic, mandatory employee testing (like those methods listed above), was generally prohib- ited, except in rare circumstances. However, since the World Health Organization (WHO) declared COVID-19 a “pandemic,” the guidelines have changed. Recently, the Equal Employment Opportunity Commission (EEOC) – the


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June 15, 2020

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