When Can Employers Require Employees to Provide COVID-19 Test Results?

By Lindsey A. White - Shawe Rosenthal LLP

August 19, 2020

In this new pandemic world, employers are grappling with many questions. One of them is when can they require employees to provide the results from any COVID-19 tests that they have taken, in the context of granting leave and returning to work.

There are several laws that apply here—the Families First Coronavirus Act (FFCRA), the IRS provisions for the FFCRA tax credit, the regular Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA), as well as general workplace safety considerations under the Occupational Safety and Health Act (OHSA). In sum, employers cannot require test results to provide FFCRA leave or for FMLA reasons but can, however, require test results for other purposes, as discussed below.

FFCRA. The FFCRA applies to employers with fewer than 500 employees. As relevant to this issue, under the FFCRA, beginning April 1, 2020 and set to sunset December 31, 2020, employees are entitled to ten days of paid leave (80 hours) for full-time employees at their regular rate (up to a maximum of $511 per day), if the employee is unable to work or telework for the following reasons (among others):

•    The employee is subject to a federal, state, or local quarantine or isolation order
•    A health care provider (meaning a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the Family and Medical Leave Act) has advised the employee to self-quarantine
•    The employee has symptoms of COVID-19 and is seeking diagnosis

The employee does not need a signed note from their medical provider to substantiate the leave.  According to the Department of Labor (DOL, which enforces both the FFCRA and the FMLA), when requesting paid sick leave, an employee must provide their employer  the following, either orally or in writing:

•    The employee’s name;
•    The date(s) for which the employee requests leave;
•    The reason for leave; and
•    A statement that the employee is unable to work because of the above reason.

Employees requesting leave to self-quarantine on the advice of a health care provider should additionally provide the name of the provider who gave the advice. The DOL has further stated that in order for an employee to take paid sick leave when they have COVID-19 symptoms and are seeking a diagnosis, employers may require the employee to identify their symptoms and a date for a test or doctor’s appointment.

Notably, employers may not require the employee to provide further documentation or similar certification that they sought a diagnosis or treatment from a health care provider in order for the employee to use paid sick leave for COVID-19 related symptoms.  Certainly, the employer may not require the employee to provide test results in order to receive leave under the FFCRA. The DOL states that this is intentional so employees with COVID-19 symptoms may easily take leave and slow the spread of COVID-19.

A Director of a regional DOL Wage and Hour Division office informally told one of our partners that nothing prohibits employers from following up with the health care provider to confirm the employee actually had an appointment. Tread lightly, however, if these entities refuse to disclose information as it does not necessarily mean the employee is not being truthful. In addition, the employer must not ask for any additional information from the health care provider.

Because employers may obtain a payroll tax credit for the FFCRA leave, the IRS has also weighed in as to the records and documents necessary to obtain the payroll tax credit (and validate the need for leave). They are as follows:

•    The employee’s name;
•    The date or dates for which leave is requested;
•    A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
•    A statement that the employee is unable to work, including by means of telework, for such reason.

Again, there is nothing that would allow the employer to obtain COVID-19 test results for this purpose.

FMLA. Employees who contract COVID-19 may be entitled to leave under the FMLA if the illness meets the definition of an FMLA “serious health condition.” COVID-19 does not necessarily rise to the level of a “serious health condition,” as mild cases are similar to the flu, which is not a covered serious health condition absent complications. Under the FMLA, employers may require a certification from the health care provider in order to determine whether a “serious health condition” exists. Although the provider is required to provide enough information about the condition to allow the employer to determine if it meets the definition, the provider may but is not required to provide a diagnosis.  Thus, employers may not require COVID-19 test results under the FMLA, although the other information to which they are entitled under the FMLA may end up being relevant to this diagnosis.

Notably, the FMLA may run concurrently with FFCRA paid sick leave (if applicable). If that is the case, employers may require the above-discussed information under the FMLA  in addition to the very limited information permitted under the FFCRA.

ADA.  Under the ADA, employers may require test results to ensure employees may safely return to work (by testing negative) and so that they may undertake other critical measures, such as contract tracing and deep cleaning (where employees test positive).

More specifically, the Equal Employment Opportunity Commission (EEOC, which enforces the ADA) has issued guidance stating that employers may require employees to undergo COVID-19 testing before returning to work:

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Although not specifically addressed in the guidance, it is our opinion that, in some circumstances, you may also require an employee who has undergone a test to determine if they have COVID-19 to disclose the results to ensure workplace safety and health. Thus, if an employee who has recently been in the workplace has taken a COVID-19 test (either because they had symptoms or because they were exposed to someone with the virus), it would be critically important for the employer to know the results of the test to determine whether the employee has posed or will pose a direct threat to others in the workplace, which then raises workplace safety issues.

Workplace Safety Concerns. If an employee tests positive, the Occupational Safety and Health Administration (OSHA) requires employers to take appropriate steps to protect other workers from infection “such as cleaning and disinfecting the work environment, notifying other workers to monitor themselves for signs/symptoms of COVID-19, or implementing a screening program in the workplace (e.g., for signs/symptoms of COVID-19 among workers).” Thus, again, it is important for employers to know when an employee has tested positive.

In addition, the Centers for Disease Control and Prevention (CDC) recommends that employers notify employees of their possible exposure to COVID-19 in the workplace when a fellow employee tests positive. Employers must not disclose the name of the employee testing positive, as that is confidential information under the ADA.

As a side note, although you may not require test results for purposes of granting FFCRA leave, if you obtain this information under the ADA or OSHA, as a practical matter, the results will likely dictate the duration of leave. For example, if an employee goes out Monday with symptoms and tests negative Wednesday (and is cleared to return to work), an employee would only need 3 days of leave. By contrast, if an employee goes out on leave Monday and tests positive Wednesday, the employee would need leave until cleared to return to work (subject to the 80 hour FFCRA cap).