In light of the May 28,2020 Order issued by the Washington State Secretary of Health mandating COVID-19 testing, employers likely can terminate the employment of an employee who refuses to participate in COVID-19 testing, provided the employee does do not have a compelling reason not to participate and the testing process is conducted consistent with the Order and applicable law.  The Order clearly establishes that being tested is a state-established condition for working in a long-term care facility. Any employee who refuses to participate, without a valid reason, will be unable to work.  Provided there are no other circumstances to suggest the decision to terminate is discriminatory, retaliatory, or based on other improper motives, it is not likely a court would find such a termination to be illegal. Furthermore, the federal Equal Employment Opportunity Commission has recently stated that an employer may lawfully require diagnostic testing for COVID-19 without violating the ADA. See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws – Technical Assistance Questions and Answers.”  This guidance signals to employers that mandatory COVID-19 testing, when carried out in accordance with the requirements of applicable guidance, will likely not run afoul of the Americans with Disabilities Act (ADA).

Based on the Order and EEOC guidance related to COVID-19 testing and screening processes, we recommend the following.

• Develop a testing process that is consistent with CDC recommendations and the Order, including incorporating adequate protections for employee privacy.  We previously issued an Alerton this topic, which may be helpful.  We can also assist you with this developing this process.
• Provide employees a notice that includes the following:

o   State that the Order requires testing;

o   Explaining the testing process and how the test results will remain confidential and private;

o   Highlight that employees with a medical justification for not participating may be exempt;

o   Explain what will happen if an employee tests positive; and

o   Provide a point of contact person for employees with further questions and concerns.

• If an employee refuses or expresses a concern with participating in testing, have an interactive discussion with that employee about their concerns.  If the employee has a valid medical justification for not participating (e.g., the testing process could be harmful to their health), they you cannot and should not require testing, consistent with the Order.  Assuming they are symptom free and have not been exposed to anyone with COVID-19, you can allow them to return to work as long as they use the proper PPE, and follow all safety protocols, in accordance with state and federal guidance. 

As the testing begins next week LeadingAge will continue to seek more guidance on staff refusals, and the potential impact on our workforce.

Questions?

Contact:

Alyssa Odegaard- Vice President, Public Policy, LeadingAge Washington

c: 206.948.2279