A summary of the compliance issues employers should consider with their own legal counsel when implementing COVID-19 testing or temperature checks as a function of a return to work strategy.

1. This summary is intended to convey general information and is not an exhaustive analysis. This information is subject to change as guidance
develops. USI does not provide legal or tax advice. For advice specific to your situation, please consult an attorney or other professional.
© 2020 USI Insurance Services. All Rights Reserved. 1 Updated May 11, 2020
Compliance Issues Related to COVID-19 Testing in a
Return to Work Strategy
The following highlights three of the most common testing strategies in a COVID-19 return to work (“RTW”)
environment currently promoted in the marketplace:
▪ Temperature testing
▪ Antibody testing
▪ Diagnostic testing
There are various compliance issues that need to be addressed prior to implementation of any testing program
in a return to work strategy. Employers should work with their employment counsel along with their risk
management advisors to address the complexities in returning employees to the worksite in a COVID-19
environment.
Given these issues, along with the limited availability of tests and reliability concerns, USI is currently providing
vendor support and guidance in the area of a temperature testing. As this is a rapidly changing landscape, USI
continues to monitor developments and will provide updates as advancements occur.
The following information is for general educational purposes only. It is intended as a high-level summary of the
issues, is not exhaustive and should not be construed as legal or medical advice. Employers should review any
return to work strategy with counsel prior to implementation.
Temperature Testing
WHAT IS IT?
Temperature testing of employees via an infrared thermometer.
COMPLIANCE ISSUES
▪ ADA. Generally, measuring an employee's body temperature is a medical examination which is
impermissible unless job related and consistent with business necessity. Because the CDC and
state/local health authorities have acknowledged community spread of COVID-19 and issued attendant
precautions, employers may measure employees' body temperature. However, employers should be
aware that some people with COVID-19 do not have a fever.1
¬ Limited relief. Once the “direct threat” and/or community spread is gone, temperature testing
may be impermissible unless job related and consistent with business necessity.
¬ Confidentiality of medical records. The ADA requires that all medical information about a
particular employee be stored separately from the employee's personnel file, thus limiting
access to this confidential information. An employer may store all medical information related to
COVID-19 in existing medical files. This includes an employee's statement that he has the
disease or suspects he has the disease, or the employer's notes or other documentation from
questioning an employee about symptoms. Employers must maintain confidentiality of records
associated with temperature checks performed on employees.
1
EEOC “What you should know about COVID-19 and the ADA, the Rehabilitation Act and Other EEO laws”. FAQ A3 issued March 17,
2020 and FAQ G1 issued April 17, 2020 (visited May 5, 2020).

2. This summary is intended to convey general information and is not an exhaustive analysis. This information is subject to change as guidance
develops. USI does not provide legal or tax advice. For advice specific to your situation, please consult an attorney or other professional.
© 2020 USI Insurance Services. All Rights Reserved. 2 Updated May 11, 2020
▪ Workers’ compensation or other general liability issues (P&C)
¬ Are carriers requiring this practice before onsite work services can resume (or at least be
insured for certain risks)?
¬ What are their solutions?
▪ Other
¬ State law
¬ New territory – potential for creative litigation
¬ Should not affect HSA eligibility
¬ Unlikely to be a group health plan under ERISA – but further guidance in this area would be
helpful
EMPLOYER RECOMMENDATIONS
Employers should:
▪ Consult with their employment counsel before implementing a temperature test policy.
▪ Determine whether to use a third party to perform test or use existing staff. Any existing staff would
need to be trained, provided with appropriate PPE, etc.
▪ Retain records in a confidential manner, in accordance with EEOC.
Antibody or Serology (Blood) Testing
WHAT IS IT?
An antibody test tells you whether you had a previous infection. According to the CDC, an antibody test may not
show the presence of a current infection because it may take 1-3 weeks after infection to make antibodies.
COMPLIANCE ISSUES
▪ ADA. Unlike temperature tests and COVID-19 diagnostic tests, the EEOC has not commented on
whether an employer can require COVID-19 antibody testing without running afoul of the ADA. Likely
needs to be job related and consistent with business necessity to be permissible or the EEOC needs to
announce an exception in the return-to-work environment.
▪ Reliability. It is unknown whether having antibodies to the virus can protect someone from getting
infected with the virus again and how long any protection may last.
▪ No FDA approval. According to the FDA, to date, 12 antibody tests have been authorized under an
individual emergency use authorization act (“EUA”), most within just the past few days, and over 200
antibody tests are currently the subject of a pre-EUA or EUA review.2
▪ Bogus tests. Per the FDA, “use of antibody tests in other settings, including at home, prior to issuance
of an emergency use authorization (EUA) authorizing such use is not permitted under CLIA, and our
March 16 policy did not change that. Moreover, as we have said before, it is not accurate for developers
to claim their test was authorized by the FDA if an EUA was not granted for the tests, nor should they
be distributing their test if it has not been properly validated.”2
2
Insight into FDA’s Revised Policy on Antibody Tests: Prioritizing Access and Accuracy (May 4, 2020) (as visited May 5, 2020).

3. This summary is intended to convey general information and is not an exhaustive analysis. This information is subject to change as guidance
develops. USI does not provide legal or tax advice. For advice specific to your situation, please consult an attorney or other professional.
© 2020 USI Insurance Services. All Rights Reserved. 3 Updated May 11, 2020
▪ Workers’ compensation or other general liability issues (P&C)
o Are carriers requiring this practice before onsite work services can resume (or at least be
insured for certain risks)?
o What are their solutions?
▪ Other
o State law
o New territory -potential for creative litigation
o Should not affect HSA eligibility
o Unlikely to be a group health plan under ERISA – but further guidance in this area would be
helpful
o Taking away tests from those who may need them more (documented COVID-19 cases)
o Unclear whether the employer can provide these tests “on-site” versus through a provider or
clinic
EMPLOYER CONSIDERATIONS
▪ Employers looking for this solution should consult with their employment counsel.
▪ USI cannot make any recommendation or endorsement of the safety or reliability of any COVID-19 test.
Employers should discuss with counsel and health care providers.
▪ Absent FDA authorization, USI is unable to recommend reputable vendors or tests.
Diagnostic Testing – Polymerase Chain Reaction (PCR) or Nasopharyngeal (Nose) Viral
Culture Test
WHAT IS IT?
A viral diagnostic test that tells whether you have a current COVID-19 infection. The viral test checks samples
from the respiratory system (i.e., nasal swab). Tests may be point-of-care (with results available at the testing
site in less than an hour) or sent to a laboratory to analyze, which may take several days to process once
received.
COMPLIANCE ISSUES
▪ ADA. The ADA requires that any mandatory medical test of employees be job related and consistent
with business necessity. Applying this standard to the current circumstances of the COVID-19
pandemic, employers may take steps to determine if employees entering the workplace have COVID-19
because an individual with the virus will pose a direct threat to the health of others. Therefore, an
employer may choose to administer COVID-19 diagnostic testing to employees before they enter the
workplace to determine if they have the virus.3
¬ Ensure accuracy. Consistent with the ADA standard, employers should ensure that the tests
are accurate and reliable. For example, employers may review guidance from the FDA about
what may or may not be considered safe and accurate testing, as well as guidance from CDC
or other public health authorities, and check for updates. Employers may wish to consider the
incidence of false positives or false negatives associated with a particular test. Finally, note that
3
EEOC “What you should know about COVID-19 and the ADA, the Rehabilitation Act and Other EEO laws.” FAQ A6 issued April 23, 2020
(visited May 5, 2020).

4. This summary is intended to convey general information and is not an exhaustive analysis. This information is subject to change as guidance
develops. USI does not provide legal or tax advice. For advice specific to your situation, please consult an attorney or other professional.
© 2020 USI Insurance Services. All Rights Reserved. 4 Updated May 11, 2020
accurate testing only reveals if the virus is currently present; a negative test does not mean the
employee will not acquire the virus later.
¬ Limited relief. Relief is limited – once the “direct threat” and/or community spread is gone,
requiring diagnostic testing may be impermissible unless job related and consistent with
business necessity.
¬ Confidentiality of records. The ADA requires that all medical information about a particular
employee be stored separately from the employee's personnel file, thus limiting access to this
confidential information. An employer may store all medical information related to COVID-19 in
existing medical files. This includes an employee's statement that he has the disease or
suspects he has the disease, or the employer's notes or other documentation from questioning
an employee about symptoms. Employers must maintain confidentiality of records associated
with temperature checks performed on employees.
▪ Workers’ compensation or other general liability issues (P&C)
¬ Are carriers requiring this practice before onsite work services can resume (or at least be
insured for certain risks)?
¬ What are their solutions?
▪ Testing performed through the group health plan
¬ Permitted in general when medically necessary – unlikely a return-to-work strategy could use
the group health plan benefit to facilitate an employer testing policy
¬ HIPAA privacy issues exist if employers try to access protected health information related to a
participants COVID-19 test from the plan for impermissible purposes (e.g., employment
decisions)
o Participant authorization is likely needed – except in the case of disclosures to public
health officials or narrow exception for work-related illness or injury or a workplace-
related medical surveillance
¬ Should not affect HSA eligibility
▪ Other
¬ State law
¬ New territory – potential for creative litigation
¬ Unable to perform these tests at most employer worksites
¬ Defective tests or improper processing4
¬ Limited access to tests – should they be reserved to those with symptoms and first responders
versus a blanket employer return-to-work strategy?
¬ Separate testing platform should not affect HSA eligibility
¬ Separate testing platform unlikely to be a group health plan under ERISA – but further guidance
in this area would be helpful
EMPLOYER CONSIDERATIONS
▪ Employers looking for this solution should consult with their employment counsel.
▪ USI cannot make any recommendation or endorsement of the safety or reliability of any COVID-19
diagnostic test. Employers should discuss with counsel and health care providers.
▪ Significant challenges exist in providing this test at a non-health care worksite.
4
Employers are encouraged to send members to their physician to be tested, since there are many tests that are currently available that are
not FDA approved.