Can an employer require an employee to produce a negative COVID-19 test result as a condition to allowing the employee to return to work?  When do requirements enacted out of concern about the safety of your workplace violate federal law?  To unpeel this onion, we must first look at the Americans with Disabilities Act (“ADA”).  Adding this to understanding the state and local orders regarding face masks and social distancing will surely bring tears to your eyes.

1.     Americans with Disabilities Act

Under the ADA, an employer may, in general, not require tests that would disclose medical conditions of its workers.  An employer also may not discriminate among workers based on a medical condition and, therefore, cannot fire an employee because the employee will not take a medical test (unless that medical test is needed for the job tasks of the employment).

If an employer harbors a reasonable belief that an employee will be unable to continue performing essential job functions, or will pose a significant risk to the health or safety of him/herself or other employees due to a medical condition, the employer may make disability-related inquiries or require the employee to have a medical examination. Any inquiry or examination must be limited to what is needed to assess the employee’s ability to work.

2.    Life in the Age of COVID-19

The declaration of a pandemic changes some, though not all of the testing that is permitted.  Testing an employee for COVID-19 symptoms is permitted because an employee with a positive COVID-19 diagnosis would “pose a significant risk to the health or safety of him/herself or other employees due to a medical condition.” As a result, the taking of an employee’s temperature, asking if they have COVID-19 related symptoms and/or requiring a COVID-19 test to arrive to work and/or enter a jobsite, is permitted when it normally would not be.

The reverse is not true. To return to work, a medical test is not generally permitted under the ADA. This prohibition includes a negative COVID-19 test after being diagnosed positive and/or a medical note from your medical provider stating you have recovered from COVID-19.

3.    Local Orders

Since the ADA governs employers with 15 or more employees, some local governments, in Texas have imposed orders to prohibit employers of all sizes from requiring a negative COVID-19 test or medical note as a condition of returning to work. For instance, on August 4, 2020, Dallas County Judge Clay Jenkins issued a Supplemental Order of County on Continuing Requirements after Expiration of Stay Home, Stay Safe that, in part, addressed this issue.

In relevant part, the Dallas County Supplemental Order reads as follows.

Employers shall not implement any rules making a negative COVID-19 test or a note from a healthcare provider a requirement before a COVID-19 recovered employee can return to work. This provision does not apply to hospitals or healthcare workers following the CDC’s test-based strategy for return to work criteria for healthcare personnel with confirmed COVID-19.

4.   What am I permitted to do?

Generally, as long as the employee who tested positive for COVID-19 completes the proper amount of time in self-quarantine and meets the criteria (as given to them by the health department) for the time period for being symptom free, then the employee can return to the job site or office. The Centers for Disease Control and prevention are seemingly revising the guidelines associated with COVID-19 on a continuous basis.  For that reason, it is recommended to consult with the CDC’s current Recommended Protocol of Discontinuation of Self-Isolation, available at www.cdc.gov.

Whenever dealing with employee-related issues, it is advisable to consult with your personnel manager and legal counsel.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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