What can I do if my employee is not taking sufficient efforts to be re-tested after having Coronavirus?

EPGD Law Employment Law

Five months into the Coronavirus pandemic, it is unfortunately common for one of your employees to test positive for the virus. What do you do? You give them time to recover at home, ensure that they sufficiently isolate themselves, and then request 2 negative test results in accordance with CDC guidelines. Eventually, it will be time for your employee to return to the office—but what do you do if they refuse to be tested?

Can businesses in Miami, Florida mandate COVID-19 testing?

Employers can test employees, but there must be a reason to do so. In other words, employers must either mandate testing for everyone, or test those that have been in contact with someone with COVID-19 or are exhibiting COVID-19 symptoms. Employees must also be made aware of the type of test they are receiving, and what the results mean.

Who has to pay for my employee’s COVID-19 test?

Under the Families First Coronavirus Response (Families First) Act and the CAREs Act, group health insurance plans are required to cover FDA-approved COVID-19 testing. Nonetheless, the testing that is covered is diagnostic testing—testing to detect or diagnose the virus, not necessarily the tests that employers would require from an employee before they return to work. While it is the same COVID-19 test, the screening or surveillance test is not necessarily covered by insurance companies.

For instance, if an employer asks an employee to get tested at a location that is more accurate or has a faster turnaround, and it is not covered by insurance, the employer would likely have to compensate the employee for that test, as per recent CDC and ADA requirements. Additionally, the employer must recognize the time the employee spends traveling to and from COVID testing centers and taking the tests themselves, especially since the employer, following CDC guidelines, is asking for two false negative tests before having the employee return. Thus, under the Fair Labor Standards Act (FLSA), employers will likely be required to compensate employees for the time spent taking COVID tests.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Eric Gros-Dubois

Eric P. Gros-Dubois founded EPGD Business Law in 2013 and is the current head of the firm’s corporate, estate planning, and tax practice, and manages the firm’s Washington D.C. office. With a JD and MBA, and a specialization in finance, Eric is able to step back and view the legal world through a commercial lens while also acting as a trusted business advisor for his clients. He does his best to be solutions oriented, and tries to think like a business owner, not just a lawyer.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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