Should employers be testing employees for COVID-19?

• Author: Hyman, Jon
• Position: WHAT I WOULDN'T DO: Legal Updates from HR's Trenches

Taken by panic and an abundance of caution, many organizations are considering requiring all employees to present negative COVID-19 tests as a condition to reporting to work.

Legally, the EEOC says you can require this testing. Practically, however, it presents some huge hurdles.

1. Tests are not a reliable indicator of whether an employee is bringing COVID-19 into the workplace because they only measure a small slice of time. Unless you are going to test every employee every day (which is not feasible or practical), a negative test only establishes that an employee does not actively have the COVID-19 virus within their system at the time the test was administered. Indeed, the CDC is not even recommending testing for COVID-positive employees any longer.

2. Tests might be flawed. As Ohio's governor recently illustrated, these tests carry a risk of false results. Indeed, a team from John Hopkins Medicine concluded that COVID-19 tests have a false negative rate of at least 20% if used too early after infection. If one in five employees who tests negative for COVID-19 is carrying the virus, why test at all?

3. Tests are expensive and not available in a large enough quantity. Testing every employee every day will cost an employer a small fortune, while at the same time unnecessarily using testing resources that could be put to better use (i.e., for those who have COVID-19 symptoms).

Keep in mind that...