Employers in the United States have had to drastically adjust to survive during the pandemic, from cutting payroll costs to implementing new health and safety procedures in the workplace. Since this is completely new territory, they’ve also had to search for answers to many questions they’ve never had to consider before. These answers enable them to stay in compliance with public health measures and employment standards in a rapidly changing business sector. One question many are asking is whether they’re legally allowed to ask employees to provide proof of COVID-19 test results when considering sick leave and return-to-work protocols. 

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Legally, the answer is complicated since several laws apply, including:

• - The Families First Coronavirus Act (FFCRA)
• - The FFCRA Tax Credit
• - The Family and Medical Leave Act (FMLA)
• - The Americans with Disabilities Act (ADA)
• - The Occupational Safety and Health Act (OHSA)
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To Grant FFCRA Leave

Employers cannot ask for COVID-19 results from employees if the purpose of the request is to grant leave under the Families First Coronavirus Act (FFCRA). This new Act only applies to employers with fewer than 500 employees. It allows up to 10 days of paid leave for full-time employees at their regular rate if they are unable to work (or work remotely) because:

• - Federal, state, or local quarantine or isolation orders
• - A health care provider has advised the employee to self-quarantine
• - The employee has COVID-19 symptoms and is seeking a diagnosis

Under the FFCRA, the employee does not need a signed medical note to be granted leave. The only information they must provide is their name, the date for which they request leave, the reason for the leave, and a statement that they cannot work due to one of the reasons described above. If a health care provider has requested self-quarantine, the employee should also provide their name. If the employee has symptoms of COVID-19 and is seeking a diagnosis, they’ll also need to identify their symptoms and provide a date for the test or appointment. No further certification or documentation is required to gain paid sick leave under this Act. The intention is to allow employees to easily take leave and prevent spreading COVID-19 at their workplaces.

For Employers to Obtain an FFCRA Tax Credit

As an employer, apart from COVID-19 tax deferrals, you may also be able to obtain a payroll tax credit if an employee takes an FFCRA leave. The documents necessary to apply for this tax credit and validate the leave include the employee’s name, the dates of the leave, a statement of the reason the employee requested the leave (with written support), and a statement that the employee is unable to work for this reason. 

Again, test results are not required here, and employers cannot ask for them.

For FMLA Leave

If the employee’s illness meets the definition of a “serious health condition” they may get leave under the FMLA. Employers are not required to see test results in order to grant leave under this Act. Because mild cases wouldn’t qualify, however, employers may request a certification from the health care provider to determine whether this qualification exists. In this case, the provider must provide enough information to allow the employer to determine whether the condition meets the definition of “serious health condition” but is not required to provide a diagnosis or test results.

Under the Americans with Disabilities Act (ADA)

Under the ADA, employees may require negative COVID-19 test results to ensure employees can return to work safely. They may also require positive test results to undertake contact tracing and deep cleaning. Employers may even administer COVID-19 testing before employees are allowed to enter the workplace.

The Occupational Safety and Health Act (OHSA)

The Occupational Safety and Health Administration (OSHA) standards require employers to take appropriate actions to keep other employees safe in the workplace, should one employee test positive for the novel coronavirus. This may include cleaning and disinfection, notifying employees to self-monitor for symptoms, and screening for symptoms in the workplace. For this reason, employers can require employees to provide test results. However, they must not share the employee’s name when notifying their workforce, as this is confidential information. 

Because varying laws are at play, the answer to whether you can ask for COVID-19 test results depends on why you are requesting COVID-19 test results. Employers must tread carefully.