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Should Employees Tested for COVID-19 Remain Out of Work Pending the Results?

    Client Alerts
  • June 11, 2020

In recent weeks, we have had a number of questions from employers about employees who have advised the company that they are awaiting results of COVID-19 tests, and they ask whether they should report to work. The response to this situation depends on the context for the testing, as well as the employee’s specific duties.

In situations where the testing was prompted by the employee experiencing symptoms consistent with COVID-19, the employee should clearly remain away from the workplace pending test results and other medical clearance. Employees in this situation may also be entitled to paid emergency medical leave under the Families First Coronavirus Response Act (FFCRA). In other cases, however, the testing is required for reasons other than symptoms or exposure, such as employees with upcoming unrelated outpatient medical treatment. In those situations, the employer may allow the employee to return to the workplace due to the lack of reasonable suspicion of COVID-19 exposure.

Other cases fall somewhere in the middle. An employee may seek a COVID-19 test due to a generalized fear of exposure, or perhaps based on a potential tangential exposure that would not otherwise present a recommendation for testing. If the employee can effectively work from home, the employer may agree to allow him or her to do so until the test results are known, out of an abundance of caution.

We have had some employers tell us they suspect that employees have sought COVID-19 tests for the specific purpose of avoiding the workplace. Assuming that the employee cannot produce medical justification for FFCRA leave, the employer may decide to require an asymptomatic employee with no evidence of direct exposure to continue working pending return of the test results.