Can Employees Deny a COVID Test? | BRIO

With 2020 behind us, 2021 is all about keeping COVID numbers down and employees safe. It’s important to understand several laws that protect employees when testing for COVID in the workplace. If workers deny a COVID test, here’s what to consider.

With 2020 behind us, 2021 is all about keeping COVID numbers down and employees safe. As part of this, most employers are now required to record COVID cases in the workplace and determine whether the virus is spreading at work. To do so, employers have to test employees for COVID and acquire workers’ written consent to the test. But some employees might refuse testing and several U.S. laws protect employees in these cases. How can you ensure workplace safety and avoid infringing upon a worker’s individual rights? If an employee denies a COVID test, ask why. Take their concerns seriously and create space to have an open conversation.

 

Refusing a Test for Religious Reasons

Someone might deny a COVID test because of religious reasons. If an employee has a sincerely held religious belief, employers are required to accommodate it unless it would create undue hardship. In the context of the pandemic, refusal to test might be considered an undue hardship because of the risk that other employees might be exposed to the virus. But as a first step, ask about the specific concern. It’s possible you can find an acceptable accommodation, like different methods of testing and screening

 

Accommodating Disabilities in COVID Testing

Any time an employer mandates medical testing of its employees, the Americans with Disabilities Act (ADA) requires that the test must be “job related and consistent with business necessity.” Under this standard, because coming to work with the virus puts others at risk and an infection could mean closing the workplace down and sending people home, the tests are part of the job and a business necessity


If an employee with a medical condition requests an alternative screening method, accommodate them as you would any other request under the ADA. Overall, it’s a good idea to have a discussion with the employee about their concerns to determine if other testing methods might accommodate their needs. Make the change available to anyone, or ask the employee to provide medical documentation establishing the medical condition as a disability and describing the need for an alternative accommodation. Don’t forget, pregnancy is considered a disability under the ADA, and employers should consider whether employees who are pregnant may benefit from modifications.

 

Refusing a Test for Personal Reasons

The Equal Employment and Opportunity Commission recommends employers communicate they are testing for COVID for the safety of all employees and that they are following guidance from the CDC.  Remind them their test results will be confidential medical records, as required in the ADA.

 

But if an employee still refuses the test for purely personal reasons, document the refusal, an important step to show your efforts toward maintaining a safe workplace free of COVID. From there, after discussing various options with the employee who is refusing to test, you may choose to  deny them the ability to come into work until they agree to be tested.

 

Other Worker Protection Considerations

Always conduct COVID testing in a nondiscriminatory manner. When singling out one particular employee to take a COVID test, you must have a reason to think they might have the virus, like the display of COVID symptoms. Employers also are required to:

 

  • Make sure tests aren’t broader than necessary to assess risks.
  • Consider whether they need to pay employees for any time they spend getting tested or waiting for results.
  • Follow CDC guidelines for other protective measures, such as social distancing and using personal protective equipment.

 

Monitoring the workplace for COVID-19 can be challenging, and workers may have different needs. Understanding how these laws apply to your screening program can help you respond to employees’ concerns proactively and keep everyone safer.


Above all, it’s important to make sure the tests keep employee information private and that they’re accurate and reliable — screening for fevers isn’t enough. BRIO is an easy-to-use, diagnostic testing platform purpose built for employers. Our end-to-end solution, VIP account and event customer support can efficiently solve for all of these different needs.


Katrina Ballard writes about health, technology and education. She holds a master’s degree in public administration from American University.

 

Sources:

Occupational Safety and Health Administration - Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)

US Equal Employment Opportunity Commission - What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

US Equal Employment Opportunity Commission - Questions and Answers: Religious Discrimination in the Workplace

SHRM - EEOC: Employers Can Screen for COVID-19

Vogel Law Firm - COVID-19 and the Workplace: Considerations for Mandatory Testing and Vaccinations