Employers Show Signs of Hesitation on COVID-19 Return to Work Testing

Business reopening and return to work was expected to create a massive new market for employer point-of-care COVID-19 workplace screening tests. However, there are troubling new indications that employer demand for testing has been tempered due to concerns over test accuracy, supply and logistics and employee privacy rights. Exhibit A: A new survey showing that while the vast majority of employers nationwide are contemplating COVID-19 screening of employees, few have or plan to make it the central focus of their return-to-work program. The Survey The survey from law firm Littler compiles the results of an online COVID-19 Return to Work Survey completed by over 1,000 US corporate leaders and professionals between May 5 to 14, including:

• Human resources professionals (59%);
• General counsel/in-house attorneys (31%);
• C-suite executives and other professionals (10%).

Respondents’ companies represented a wide range of sizes:

• One to 100 employees (15%);
• 101 to 500 employees (28%);
• 501 to 1,000 employees (12%);
• 1,001 to 5,000 employees (22%);
• 5,001 to 10,000 employees (8%);
• More than 10,000 employees (14%).

Pace of Reopening The first key finding is the cautious pace of reopening. Most employers say they’ve adopted a wait-and-see approach, with 42% saying they plan to monitor the outcome of other business reopenings before making their own decisions. Only 18% of respondents indicated that they plan to bring employees back immediately after each stay-at-home order is lifted. Another 33% say they’ll wait a few weeks, and 10% they won’t reopen at all until the crisis subsides and/or testing becomes broadly available. Graph A: When Businesses Plan to Reopen after Stay-at-Home Order Is Lifted (Non-essential businesses only) Source: Littler The Role of Point-of-Care COVID-19 Testing Health screening of some sort will be part of their return to work strategies for 58% of respondents—almost 70% of respondents at companies with over 5,000 employees. Among these, 89% indicated that they’ll perform temperature checks, and 72% said that they’ll do symptom screening. More than 80% of those respondents say screenings will be mandatory. Graph B: Health Screening Methods Employers Plan to Use Source: Littler However, as shown by Graph B, COVID-19 testing figures to play a much less prominent role, cited by only 21% of companies planning to implement health screening. Among these, 8% of indicated they would conduct antibody testing, 7% said they’d conduct antigen testing and just 6% said they’d perform PCR or genetic tests. Liability Concerns Concerns over liability may explain the relatively low numbers of employers planning to perform COVID-19 testing on employees. The key concerns:

• Privacy: Test results are protected health information (PHI) that require consent to collect under HIPAA and other privacy laws; and
• Disability Discrimination: The performance of tests is a medical exam banned by the federal Americans with Disabilities Act (ADA) and state civil rights laws.

The good news is that both the federal Office for Civil Rights and US Equal Employment Opportunity Commission (EEOC) and equivalent state agencies have given the greenlight for testing as a temporary health and safety measure during the COVID-19 pandemic. However, that authorization doesn’t cover serological antibody testing due to the inaccuracy of such tests. Thus, on June 17, the EEOC issued guidelines making it clear that employers may not make employees submit to antibody testing, citing CDC Interim Guidelines that these tests are inaccurate and “should not be used to make decisions about returning persons to the workplace.” Moreover, even in performing permitted molecular and antigen tests, employers must adhere to strict limitations to ensure they collect, use and disclose only the information necessary to accomplish the purpose of COVID-19 screening and keep test results confidential and secure. All of this is enough to give at least some employers the heebie-jeebies.  

Case Studies: Some Companies Relying on COVID-19 Screening TestsWhile there seems to be at least some hesitation on the use of employee COVID-19 testing, some companies are making testing a central focus of their return to work strategy. For example, Delta Airlines just launched a program to test employees for active COVID-19 and antibodies under a partnership with the Mayo Clinic and Quest Diagnostics Inc. Chief Executive Ed Bastian in an employee memo said the program would “evolve into a full testing protocol – something that will be essential as we ... begin the return to normal operations.” Delta’s testing program was rolled out in Minneapolis, followed by Atlanta, Detroit and New York. Yale University also launched a free and voluntarily pilot COVID-19 screening program to nearly 6,000 members of faculty, staff, and trainees who were currently authorized to be on campus or returning as part of phase one of research reactivation. As of the end of the first week, over 1,000 tests were completed for enrollees.

  Key Lab Players in Return to Work Testing Segment Lab companies that have invested heavily in employer return to work COVID-19 screening testing and services space include: LabCorp, which on May 14 launched LabCorp Employer Services offering customized return to work solutions using trained medical staff for employee check-in health questionnaires, temperature screens and COVID-19 test collection at the employer site or offsite. The service includes the firm’s new at-home collection test kit, fingerstick antibody blood test and (starting this fall) flu vaccine services. Quest, which on May 27 launched its Quest Diagnostics Return to Work services suite, including on-site temperature checks, respiratory and blood specimen collection, online questionnaires, access to telemedicine services and contract tracing initially targeting healthcare workers, first responders and other high-risk jobs involved in pandemic response. ChristianaCare, one of the largest healthcare providers in the mid-Atlantic region provider which on June 8, launched a telehealth Employee COVID-19 Symptom Monitoring and Testing Program that has so far signed up 12 Delaware employers covering about 5,000 employees. Verily, an Alphabet company, which on June 18 launched its Healthy at Work program combining symptom screening, testing services, and data analytics. The initiative comes on the heels of Verily’s Baseline COVID-19 Testing Program which has tested more than 220,000 individuals across 13 states in partnership with state and local public health authorities. Takeaway Even worse news for labs involved in on-site COVID-19 return to work testing came on June 23 when the Trump administration clarified that, unlike tests ordered by medical providers for coronavirus diagnosis and treatment, insurers would not be obligated to pay for employer screening tests. (See the related story on page X.) The policy is likely to have only a marginal effect on Quest, LabCorp and other labs providing testing for healthcare, skilled nursing and other high-risk, essential workers for whom screening testing is mandatory under state or local law. But loss of the insurance safety net is likely to discourage at least some non-essential employers to take a pass on preventive COVID-19 return to work screening.