Vague testing guidance hinders business reopenings

Companies can require diagnostic coronavirus tests and temperature checks but the Trump administration hasn’t said when or how often to test.

Gaps in federal guidelines and ongoing fears about contaminated workplaces are keeping businesses from reopening the way the White House envisioned a month ago, when it shifted its pandemic message to an economic revival.

The Trump administration has said businesses can make diagnostic coronavirus tests and temperature checks a condition for returning to work. But it hasn’t answered key questions like when or how often to test workers or whether there should be a blanket testing policy for job seekers.

Now, employers worried about a do-it-yourself approach are asking Congress to give them broad legal protections in case workers or customers get Covid-19. And they’re bracing for the added cost of testing, hiring companies like LabCorp and Quest Diagnostics to repeatedly screen their employees.

Critics blame the Trump administration for deferring too much decision-making to states and localities and leaving businesses hanging in its eagerness to reboot the economy.

“We’ve got different people in different places doing different things because there is no universal plan, no comprehensive plan to guide people, and I think that to me is very unacceptable,” said Rep. Alma Adams (D-N.C.), who chairs the House Education and Labor Subcommittee on Workforce Protections.

The government’s top infectious diseases expert, Anthony Fauci, last week warned about the possibility of new hot spots if businesses don’t heed the existing recommendations and instead rush to reopen.

“We are going to see upticks in cases even in the best circumstances,” Fauci said on CNN. “Don’t start leapfrogging over some of the recommendations and the guidelines because that’s really tempting fate and asking for trouble.”

The testing picture is complicated by the fact that several federal agencies provide guidance on business planning during the pandemic, though their enforcement powers are limited.

No enforceable rules

The Equal Employment Opportunity Commission, which polices workplace discrimination, said in April that employers can require workers to be tested, wear masks and have their temperatures checked as a condition of employment without running afoul of federal discrimination and disability law.

The Occupational Safety and Health Administration oversees worker safety, often relying on the Centers for Disease Control and Prevention for technical expertise. But OSHA hasn’t issued a mandatory workplace safety standard for Covid-19, so whatever guidelines it and the CDC develop are largely unenforceable.

The agencies and others have moved to set guardrails for businesses coming back from lockdowns. New CDC guidelines for office buildings suggest employers step up disinfection of work spaces, promote distancing and screen for Covid-19 symptoms. FEMA separately announced the government will distribute non-contact infrared thermometers to support workplaces “with a high degree of person-to-person interaction.”

The landscape makes it possible for employers to make Covid-19 screening or testing a condition of employment, meaning they could delay a worker’s start date or withdraw a job offer if someone is shown to have symptoms, said Beth Alcalde, an attorney at the law firm Akerman LLP. However, the EEOC has cautioned an employer must screen all potential employees applying for the same job.

Beyond the evolving rules is the question of whether there are enough tests to even open critical segments of the economy. Experts including Ashish Jha, director of the Harvard Global Health Institute, have warned more than 900,000 daily tests are needed to safely reopen the country — more than double the amount being conducted today. A lack of basic supplies like swabs that bedeviled earlier efforts to contain the virus could again prove to be a roadblock.

“It was inadequate testing that precipitated the national shutdown,” Jha told the House Select Subcommittee on the Coronavirus Crisis last month. “We must not make the same mistakes again as we open up our nation.”

Even blanket testing won’t guarantee that a business is free of Covid-19. Diagnostic tests can prove unreliable and can miss an infection. And antibody tests, once promoted as a vital tool for safely reopening the economy, are meant to identify who has been exposed to the virus, not active cases. The CDC says antibody tests should not be used to make decisions about employees returning to work.

“There is no way to be 100 percent certain that we’re not going to have a virus in the workplace no matter what you do,” said Jay Wohlgemuth, Quest’s chief medical officer.

Lawmakers aware of the limitations are working to insulate companies from legal claims. Senate Majority Leader Mitch McConnell says the GOP is working to provide Covid-19 liability protections to companies that are sued for failing to protect their workers and customers from the illness.

Business groups including the U.S. Chamber of Commerce are asking for “targeted liability relief” for businesses that work to follow the government’s guidelines.

Employers worry “about potential [legal] exposure if they do something that falls short of securing the safety and health of their population,” Alcalde said.

The CDC largely has avoided making recommendations when employees should be tested for an active coronavirus infection. But the agency says employers shouldn’t require sick employees to submit to a test or to produce a doctor’s note to qualify for sick leave or return to work.

Though the agency has taken steps like recommending facility-wide testing in nursing care facilities, it doesn’t have any corresponding guidance for businesses on testing employees. CDC spokesperson Jason McDonald told POLITICO it is up to state or local health departments to provide specific guidance to businesses on testing.

“Testing is a complex issue, and right now CDC doesn’t have the establishment-wide guidance to give an employer who’s interested in doing testing,” John Howard, director of the National Institute for Occupational Safety and Health, said during a worker safety hearing last week. “We may be coming out with more guidance on that issue, but right now we don’t have enough information.”

Commercial laboratories LabCorp and Quest Diagnostics have started return-to-work services, such as employee symptom screening and testing for active or past coronavirus infections to help businesses bring workers back on-site.

Quest’s Wohlgemuth told POLITICO the frequency of how often workers are screened should hinge on factors like the rates of transmission in a given community and the characteristics of jobs.

“It’s very different to be in an office with distance than to be an ER doctor or to be in a meat packing facility,” Wohlgemuth said.

Attorneys predict businesses will pick up the cost of testing, as well as giving workers the necessary time and ensuring the results are confidential.

Privacy issues

Civil liberties groups like the ACLU caution that widespread testing could still raise a host of privacy issues that keep workers and job seekers away.

“Privacy is not a side issue here, but it’s actually a core part of making the response to Covid effective,” said Jay Stanley, a senior policy analyst on technology-related privacy and civil liberties issues at the ACLU. “If people don’t feel that their privacy is being protected they will resist screening programs that they feel might threaten them.”

The CDC in its reopening guidelines states that if implementing health checks, businesses should “conduct them safely and respectfully, and in accordance with any applicable privacy laws and regulations. Confidentiality should be respected.”

Stanley recently warned that companies should “skeptically scrutinize all such products and proposals, especially where they have implications for our privacy or other civil liberties.”

“We don’t want to wake up into a post-Covid world where companies, employers or others feel like they have a permanent free hand to start collecting physiological data about people,” he told POLITICO.

The EEOC stresses that any data about workers or potential employees obtained through medical examinations must be kept confidential.

Wohlgemuth said Quest has developed an informed consent process for businesses to use to ensure employees understand how their health data will be used by employers for infection-control purposes. No personal health information will be shared with employers unless it is needed to drive a health and safety decision, Wohlgemuth said. “Even then, it’s held very tightly and we have processes in place to make sure that the identity of the person is only known when absolutely necessary,” he added.

Former EEOC Commissioner Chai Feldblum, now a partner at Morgan Lewis, said the privacy aspect “is really not overly burdensome.”

If an employer wants to keep a record of that medical information, Feldblum says they “just need to make sure that that information is not in that employee’s personnel record, and just kept separately, as a medical record.”

But Feldblum cautions that employers should keep in mind that they do have to try to accommodate those who have disability or other concerns with procedures like wearing face masks and, if necessary, provide an unpaid leave of absence.

Companies including Ford Motor Company announced recently that they would provide Covid-19 testing for employees showing symptoms at its plants in Michigan, Kentucky, Missouri and Illinois. The car manufacturer has recently shut down plants for cleaning after workers tested positive in Chicagoand Kansas City.

Casino companies MGM, Caesars Entertainment and Boyd Gaming also recently announced a Covid-19 testing policy for their employees.

The Culinary Workers Union, which represents thousands of workers at Las Vegas casinos and hotels, is pushing the Nevada Gaming Control Board and Democratic Gov. Steve Sisolak to adopt their recommended public health guidelines for the industry that include testing employees for Covid-19.

But for all the precautions, employers won’t be able to make their employees take a vaccine for Covid-19 once one is ready.

The EEOC cautions that federal disability and anti-discrimination law bars such a requirement for a flu vaccine due to a worker’s potential medical conditions or religious beliefs.

“Employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” the agency recommends.

This blog originally appeared at Politico on June 2, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.

About the Author: David Lim is a health care reporter at POLITICO focused on covering the policy, regulation and politics that affect the medical device industry and the Food and Drug Administration. Before joining POLITICO, David helped launch Industry Dive’s MedTech Dive and worked at Inside Washington Publishers’ FDA Week. A fan of the Mountain Goats, he enjoys playing ultimate frisbee and rock climbing in his spare time.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.