November 3rd, 2020 | Sterling

Answers to Top 10 Questions on Return-to-Work/School Covid-19 Health Testing

As part of Sterling’s ongoing efforts to provide support during the Covid-19 crisis, we recently hosted a live, in-depth panel discussion on Covid-19 health testing for employers regarding return-to-work/school strategies.

In the blog below, we’ve compiled the top 10 questions addressed during the live Q&A and distilled the responses provided from among our panel of experts, which included Joy Henry, Sterling’s Financial and Business Services General Manager; Peter Lehmann, Chief Strategy Officer for Sterling; and Angela Preston, SVP & Counsel for Sterling’s Corporate Ethics & Compliance team. If you prefer to hear the live discussion, questions, and answers in depth please watch the on-demand recording here.

Question 1: What are some common challenges that employers and educators are experiencing to create a safe workplace, school, or campus?

It’s important to first understand who needs to be brought back to the workplace. Many organizations are dividing the workforce between who they physically can bring back, and who can work remotely. Related to this is how many people should be brought back, which then helps to inform the spacing of people—both from a distance as well as timing perspective—for the sake of safety.

Many of our clients that are bringing people back have expressed that they want to do more than just temperature checks, and conduct active virus testing to supplement screening measures. Among the questions that employers need to ask themselves on this front include, “Who am I going to test, when, and how often?” and “How do I manage all this?” Testing different populations, potentially with differing frequencies and circumstances, is a clear need.

Question 2: What Covid-19 testing options exist for employers and educators, and what are most organizations using?

The primary option available right now is called PCR active virus testing. Most organizations are leaning more towards some form of an at-home kit that can be physically handed to and administered by an employee who’s in the office or at home. This type of test provides a lot of flexibility, whether an employee is remote, travelling, if they’d need to take a kit with them, or if they’d need to test before they come into an office. A kit that can go into an employee’s suitcase, backpack, or desk drawer at home affords a great amount of flexibility.

There primarily are two kinds of kits available: nasal- and saliva-based. The nasal kit has several different types of tests, but the at-home test is for the interior of the front of the nose, which is a less invasive test. The saliva test, which many employers are leaning towards, is less invasive and is very similar to an -type of specimen collection. It’s thus something that feels more familiar to people, and is easy to administer.

Question 3: What are the considerations for at-home testing versus on-site testing?

At-home testing has a convenience factor inherently associated with it. Employees can test at their choice of locations and time, whether at home or elsewhere. For employers using an at-home service like Sterling’s managed Covid-19 health testing, convenience is afforded in simply specifying who needs to be tested. Everything from that point on is handled by Sterling, from having the test kit sent to the employee who then takes the test and sends the saliva sample back, to having the test processed by one of our lab partners, to communicating the results to the necessary stakeholders. For many of our clients, this is the go-to option. Our on-site testing also has advantages, primarily faster turnaround time (with at-home testing, it takes one business day between ordering a test and shipping it for overnight delivery).

Question 4: What is EEOC’s role in return-to-work guidance?

Many employers express concern about the legalities around leveraging Covid-19 health testing results in their return-to-work decision-making processes. The Equal Employment Opportunity Commission (EEOC), which enforces anti-discrimination laws in the workplace, provided specific guidance in March of this year around pandemics, and updates that guidance on a regular basis.

You can check out its website updates here.

To highlight a few points from its guidance:

• EEO laws still apply during a pandemic, including the Americans With Disabilities Act, the Rehabilitation Act, Anti-Age Discrimination, and other EEO laws
• These laws should not prevent employers from following the health guidance from the CDC and the other health authorities
• The EEOC has been clear that the Covid-19 virus presents a direct threat to the workplace, and therefore employers are entitled to protect the workforce
• Antibody tests do not meet the legal standard of being job-related under the ADA, and thus may not be used to determine access to the workplace at this time

Question 5: How should a Covid-19 testing strategy be created to align with the latest EEOC guidance?

Since Covid-19 is considered to pose a direct threat of potential deadly harm to a workplace, employers should consider creating a comprehensive program that includes testing. The EEOC has provided guidance for employers in how to test and use results to monitor who is safe to enter the workplace. (The EEOC states, however, that antibody tests, which employers can administer if they choose to do so, cannot be used to make decisions about who can and cannot enter a workplace as they do not meet the Americans with Disabilities Act (ADA) job-related standard. See question 6 for more details.)

These efforts can be combined with other measures like temperature taking and health questionnaires. Employers are allowed to ask about employees’ symptoms, as it is not a violation of the ADA. However, employers shouldn’t go beyond the boundaries of the symptoms of Covid-19 in making return-to-workplace decisions, and they shouldn’t ask if a family member is infected as doing so would violate privacy and anti-discrimination laws, but you can ask if you’ve come into contact with another person who has tested positive. Most importantly, you can require periodic testing.

Question 6: What should employers think about antibody testing? What are the legal considerations or what does the EEOC have to say about antibody testing?

There’s a lot that is still unknown about Covid-19, and antibodies are still unknown insofar as how long they stay in one’s body, and whether or not one can get the virus again even if they’ve previously gotten it. The EEOC has followed the CDC’s guidance on this and reiterates that you can’t use antibody testing as a means of determining safety in the workplace or a direct threat to the workplace. Thus, you cannot require antibody testing of your employees, and you can’t use it as a determining factor in employment or entry into the workplace. While this pretty clear currently in terms of a directive, as we learn more about the virus, new information will be made available that could be different in the future than what today’s guidance looks like. EEOC and CDC guidance is constantly evolving and changing, and it’s important to keep track of it.

Question 7: What does it mean to have an end-to-end Covid-19 health testing program, and why is it beneficial?

A managed, end-to-end Covid-19 health testing program translates into more benefits than just reliable testing. It’s about asking questions and keeping employees educated, and that’s an ongoing process. As the colder months approach, with myriad and ever-changing predictions about Covid-19 surges amid the coming flu season as well,  it is important to work with a trusted screening partner like Sterling to ease the burden of overseeing, administering, managing, and coordinating all testing elements in a centralized, tech-enabled way. A real end-to-end program should flex as needed, which means being able to make sure that your organization has access to the tests needed, kits, availability, and support for employees as they go through the process. The end result for employers is a trusted process in which they can rely on a partner like Sterling without having to manage all of the intricate details of health testing themselves.

Question 8: What is rapid testing, and what are its potential uses?

The key difference between rapid testing or Antigen testing from other tests is that it’s not molecular-based. And, since these tests are not lab-based, tests can be administered more quickly with results coming back faster (most of these tests are done in 15- to 30-minute timeframes).

Questions about the proper application of such tests are under consideration. The bigger question is does it translate into testing for a symptomatic population and for purposes. At this point, from a Sterling perspective, we have not incorporated antigen testing into our suite of testing. We are actively following the market to make sure that we bring the best solutions to our clients to support their testing needs. The market for rapid testing is very quickly emerging. Outside of just standards for accuracy, we also look for things like making sure the tests have received the FDA’s emergency use authorization (EUA) and that the tests are commercially available so that our clients won’t have issues getting access to these tests. We will continue to monitor the space closely.

Question 9: What are the strategies around testing and re-testing? Whom should I test? What about employees that may be infected between taking a test and getting the results?

This question is closely tied to turnaround times—between testing and receiving results. For example, if you test someone and it takes seven days or 10 days to get the results, is it a relevant test and does it ensure that that person is healthy as they plan to go to work? Receiving results between 24 and 48 hours, from the time the lab receives a sample, is a short enough time for an accurate result.

Even so, adopting repeat testing or re-testing is a good way to keep your workforce safe and help them stay healthy. However, this does not necessarily require re-testing every employee. Periodically re-testing certain roles within the organization that have high contact or rotational contact with different people, or those that move frequently throughout the workplace environment, can be an efficient model to follow.

When it comes to asymptomatic employees, it is important to consider existing health codes and established health standards. This should include guidance from the CDC, state orders, and local executive orders, and being cognizant of what your responsibilities are under the law with reporting positive tests. The general guidance of requiring two negative tests before allowing someone to re-enter the workplace prevails. It’s not that you couldn’t allow them to work remotely if that’s a function of their job. The bigger question is, what about the rest of your staff? The inverse of that is you can’t require that population to stay home without some medical evidence to the contrary. A comprehensive testing program that includes re-testing among other ongoing best practices can help keep employees safe in a variety of scenarios.

Question 10: What types of COVID tests does Sterling offer?

One option we have includes a full-service package, where test kits are shipped to the employee at home, the employee does the sample collection there, and the process is remotely observed by a trained observer. If employers are concerned about making sure that their employees are doing the sampling right, observed tests are better. A built-in option like this would entail slightly higher costs. A less expensive option exists where kits can be shipped in bulk to employee locations and self-administered collection samples gathered without observation. As new options come to market, Sterling will continue to evaluate and offer those that are best suited to the needs of customers.

We have numerous resources available for you in these uncertain times, including our Covid-19 Support Page, our social media channels, and more. Make sure you’re going to a reputable source and getting the information you need on this topic. Watch the full recording of this on-demand session to gain deeper insights on the topics above, and to get answers to more questions from the audience.

Take Our Polls

In addition to questions on reliable, convenient, and end-to-end Covid-19 health testing solutions for employers, we polled our live-session attendees to better understand current needs.

See how our extensive cross-section of attendees responded to the two polls we conducted during the session, take the polls below and compare your choice with those who attended the live session. Or watch the on-demand recording to hear first-hand from our panel of experts.

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Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.