COVID-19 Return to Work Testing and Vaccination Programs
Even as many workplaces remain largely shuttered, employers are pondering how to safely bring their workers back. The most obvious worry is that returning workers will introduce the SARS-CoV-2 virus to coworkers. And, if that happens, employers are uncertain what legal liability they may face.
Some risk mitigation actions are obvious and have been nearly universally implemented: promoting social distancing, posting signs about hygiene best practices, and, perhaps, taking
employees' temperatures when they arrive. Those steps are reasonable but certainly not a foolproof means of controlling the virus. To prevent infected employees from entering the workplace, should employers mandate return to work (RTW) testing for the SARS-CoV-2 virus and/or vaccination against the virus (as we prayerfully and hopefully await that breakthrough)? If so, who bears the costs associated with these measures? We address these questions below.
The threshold question regarding testing is whether it is legal as part of the RTW process. Most jurisdictions permit employers to test for the SARS-CoV-2 virus. Some prohibit it. For
example, a Dallas ordinance bars RTW SARS-CoV-2 testing. If you are unsure of local requirements, feel free to reach out to us.
Assuming that RTW testing is legal, there is nonetheless debate whether it is prudent. In some contexts, particularly where front-line workers have continued to work (e.g., care providers), testing is conducted on a periodic, and in some cases even daily basis. But RTW tests may have little utility in most workplace contexts because they offer only a snapshot of a worker’s health at a point in time. A negative test at the RTW decision point does not mean that the worker will remain virus-free. For the moment, the EEOC and Centers for Disease Control and Prevention do not encourage employers to implement RTW testing programs. Questionnaires and other means to check for symptoms of illness, such as temperature checks, remain the preferred approach.
If an employer mandates RTW testing, who is responsible for the cost of test administration and lab work? These costs may be significant for health care plans that insure numerous denominational workers and single employer health care plans (e.g., a large ministry with a self-insured plan for its workers). And, costs will rise along with the frequency of testing. Keep in mind that, while federal law requires plans to cover the cost of physician-ordered diagnostic testing, it does not address the cost
of screening tests, such as RTW tests.
Current federal guidance on this issue states that health care plans need not cover the cost of “testing conducted to screen for general workplace health and safety (such as employee 'return to work' programs) ... or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19." Some in Congress have pushed back on this guidance, suggesting that the federal laws responding to the pandemic should be interpreted to cover RTW testing costs. At present, employers, not plans, bear RTW testing costs, and that obligation is unlikely to change unless Congress collaborates on a new round of pandemic legislation.
Scientific developments may prove important here. As new testing methods are approved, the cost per
test may decline significantly. Tests that yield "instant" or near-instant results could become very economical, although we are not (yet) at that point.
Serology testing looks for SARS-CoV-2 antibodies. This type of testing is more invasive and presently requires a blood sample. Some experts, however, question the efficacy of serological testing for coronavirus antibodies. In addition, some jurisdictions prohibit employers from requiring serological testing. Virginia regulations, for example, prohibit RTW serological testing for employees who were previously known or suspected to be infected with the virus.
In light of the practical downsides of a RTW testing program, employers are considering whether they should require employees to have COVID-19 vaccinations before returning to work, if and when a vaccine is approved.
An inoculated workforce is the best case scenario. But as is the case with RTW testing programs, there are practical complications with mandatory RTW vaccination—beyond the inevitable logistical problems associated with vaccine supply and availability. (For the federal government's current vaccination preparedness plan, see the "playbook" just issued by the CDC.) A subset of workers likely will resist vaccination out of fear, or for health, religious, or other reasons. Some employees may contend they do not need inoculation because they have recovered from COVID-19, or, as the medical literature suggests may be the case, have a natural, pre-existing immunity to SARS-CoV-2. Employers who mandate vaccines will have to determine what type of proof of vaccination employees will need to present.
The most significant hurdle may be that employees will oppose vaccination in a bid to continue to work at home, regardless of whether they have genuine objections to inoculation.
It is generally agreed that employers may lawfully condition an employee's return to work upon proof of a COVID-19 vaccination. Yet, specific legal obligations will prevent most employers from achieving a 100% vaccination rate for their workforce, and for the moment legal risks caution against a mandatory program. Religious objections will need to be accommodated, under both federal and state laws, and individuals with disabilities will also be entitled to reasonable accommodations. The EEOC’s current guidance bars mandatory vaccination over employee objections (see sidebar), but the agency presumably will issue new guidance if and when a COVID-19 vaccine is approved. Disputes in this area will have to play out on a case-by-case basis.
As to the cost of RTW vaccinations, Health and Human Services Department officials recently stated that “the government is working with commercial insurers to make sure their members do not face copays.” The goal of HHS is to make vaccines free to individuals. While presently it is not clear whether welfare plans will be able to recoup some or any of their vaccine-related costs, it seems likely that, in the end, the federal government will cover most of those costs.
Several states have enacted or are considering legislation covering employers with immunity from employee lawsuits
in connection with returning to work. (Other jurisdictions, in contrast, seem to be imposing additional requirements on employers.) State immunity laws may provide employers with significant protection against employee claims, but the scope of the protection depends on the specific state law, and the immunity will not prevent employees from pursuing federal claims, such as federal disabilities and discrimination claims.
These questions about RTW testing and vaccination arise amid uncharted medical and legal waters. As to the medical aspects, most employers lack expertise but do have access to practical educational resources, such the CDC's guidance. While general guidance is helpful, context also matters: safety measures that are important in places where the virus is widespread or even surging will likely have less utility in other parts of the country. As to legal issues, many are novel, and federal, state, and local requirements are being introduced and enacted at a fast clip. For now, as a practical matter, employers should assume they have a duty to remain up-to-date on coronavirus implications for the workplace.
If you have any questions about this topic, please contact us.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.