Can I Require My Employees to be Tested for COVID?

Molly PereiraFeatured News

Each week brings a new trend in questions from member dentists at the CDA.  As the numbers surge, it is no surprise to see questions around testing this week. The CDA consulted with attorneys Gary Benson, Esq. and Sean O’Brien at Dworkin, Chambers, Williams, York, Benson & Evans, P.C. Here is some information on the three commonly asked question this week.

Q: Can a dentist employer require staff employees, who were potentially exposed, to be tested for COVID-19?

A: Yes. You can require that employees get tested for COVID-19 as a condition of their physically entering the workplace. The Americans with Disabilities Act requires that any mandatory/required 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 are positive for COVID-19, because an individual with the virus will pose a direct threat to the health of others.

Q: If insurance does not pay for that test, is the dentist required to pay for it?

A: Both the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES Act) contain requirements that group and individual health insurance plans cover COVID-19 diagnostic testing without cost-sharing, co-pays, or deductibles. This requirement not only includes the cost of the test itself, but also the cost of any related office, urgent care, emergency room, or telehealth visits.

If an employee is not covered by applicable health insurance, Equal Employment Opportunity Commission (EEOC) guidance strongly suggests that the Americans with Disabilities Act requires employers to cover the costs of COVID-19 testing. The EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA” provides that an employer must pay for all medical-exam related costs when an employer requires the examination because the employer reasonably believes the employee poses a “direct threat.” According to the EEOC, “COVID-19 poses a direct threat.” Therefore, the Americans with Disabilities Act would require an employer to cover the costs of diagnostic testing related to keeping that direct threat out of the workplace. 

Q: Does the dentist have to pay the employee for their time off to get a COVID-19 test?

A: According to the FFCRA/CARES Act, time off required to get a COVID-19 test would be covered under the law and paid for by the government in the form of the payroll tax credit for the employer.

The content in this article is for general information purposes. Please consult legal counsel for specific information applying to your circumstances.

Editor’s note: The timing of COVID-19 testing (from the point of exposure) and the type of test administered can impact results. The Colorado Department of Public Health and Environment has established a provide help line (303-692-2700) to address questions of this nature and help assess exposure risk in the dental office. The American Dental Association has also released guidelines for Testing Dental Employees for Antibodies and Antigens.