Testing

Last Updated 9/21/2020

DISCLAIMER: This Back to Work Toolkit is intended to provide employers with general guidance and information on how to reduce potential exposure to COVID-19 in the workplace and does not constitute legal or medical advice. Business owners are highly encouraged to obtain legal advice on any business plan, including the development of any corresponding policies and procedures, specific to their individual workplace, jurisdiction, and circumstances to ensure compliance with applicable health orders, laws and regulations. Due to the ever-changing situation related to COVID-19, it is critical that business owners stay abreast of important legal updates and maintain appropriate flexibility in the administration of their policies in this regard.

As part of the COVID-19 Enhanced Regional Public Health Partnership, the Medical Center of the Americas Foundation and Battelle have compiled this toolkit which includes testing resources. The  City of El Paso, Better Business Bureau of El Paso, Medical Center of the Americas Foundation, or Battelle do not warrant or assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any information disclosed or product or service listed on epbusinessstrong.org.

Employers can assist in preventing and slowing the spread of the coronavirus disease 2019 (COVID-19) while re-opening and sustaining services during the ongoing COVID-19 response. A comprehensive business response plan to COVID-19 should be specific to your workplace, identify all work areas and tasks that may provide potential exposure to COVID-19, and include control measures to eliminate or reduce exposures to COVID-19. Additional guidance on comprehensive measures that can be taken to minimize or slow the spread of COVID-19 in the workplace are provided by the CDC.

The purpose of this resource is to provide local business operators with information to better assess how testing may be incorporated into your comprehensive “Back to Work Toolkit” of strategies to protect workers, customers, vendors, and our broader community while re-opening and sustaining services during the ongoing COVID-19 response.

This page has been developed based on what is currently known about the coronavirus disease 2019 (COVID-19). The information provided is meant to supplement, not supersede any federal, state, local, territorial or tribal laws or regulations. Businesses and employers are encouraged to routinely monitor and coordinate with state, local, territorial or tribal health officials to obtain timely and accurate information to inform appropriate response. Your plan should routinely take into account the level of disease transmission within the community, and be revised as needed, including discussing any changes to your plan with your employees.

Furthermore, employers should consult with their company’s human resources, legal, medical, and occupational safety and health guidance, policies, and other resources to inform their plans.

This page will be updated as additional information and guidance regarding COVID-19 becomes available. Information on public testing resources can be found at EPStrong.org.

Table of Contents

Why consider testing as part of your comprehensive approach?

There are two types of COVID-19 tests: diagnostic tests and antibody tests. Each test serves a different purpose, is collected at different times during infection, and is collected using different methods. Additional information on the differences between these tests are presented in further detail here.

Testing has many potential benefits:
  • Diagnostic testing can help mitigate COVID-19 hot spots by identifying individuals that are infected but not yet experiencing symptoms (i.e., pre-symptomatic), or those that may not experience any symptoms (i.e., asymptomatic) that can result in quick actions to curb the spread of disease within the workplace.
  • Diagnostic testing, combined with other health and safety measures, can give employees and customers a sense of comfort as they report to work, patronize stores, and engage in other community services.
However, currently, there are also some limitations with COVID-19 testing and results:
  • Currently, a physician’s order is required for all tests, though how this is provided may vary by each testing site and provider. Employers are encouraged to coordinate with any testing entities on how to best fulfil this requirement.
  • As the COVID-19 response continues, there may be times when testing supplies may be limited or that turnaround times for test results may take longer than anticipated.
  • No test is 100% accurate. Furthermore, not all tests are equal, and it is important to consider factors such as specificity, or the potential for false positives, and sensitivity, or the potential for false negatives, when determining how reliable test results may be. Furthermore, some tests may exhibit cross-reactivity with other coronaviruses, such as those that cause the common cold.
  • An individual may have the virus, but the sample may not collect it, or the sample could accidentally become contaminated during collection or analysis. Other potential issues could occur during analysis as well, which could impact results.
  • At this time, additional research is being conducted to determine if the presence of antibodies means that you are immune to COVID-19 in the future .

When to test?

As part of a comprehensive business response plan, employers may choose to supplement in-person or virtual health checks (e.g., temperature screening, symptom questionnaires) with testing. 

Currently, the CDC and the Texas Department of State Health Services does not recommend testing be required before returning of employees to validate their illness, qualify for sick leave, or to return to work following an illness. Furthermore, additional guidance on COVID-19 testing and the U.S. Equal Employment Opportunity Commission (EEOC) and Americans with Disabilities Act (ADA) are available here.

While testing may not be required for everyone, you may consider a tiered testing approach for your employees. For example, testing may be prioritized for those employees meeting the following criteria:

  • Employees experiencing symptoms such as a fever, cough, shortness of breath or difficulty breathing, and/or diarrhea
  • Employees who have had contact with someone diagnosed with COVID-19
  • Employees that routinely have more face-to-face contact with the public or other vendors (e.g., cashiers, servers, receiving department, etc.) and may pose a direct health threat to the health of others should seek legal advice in the development and application of any testing policies and procedures to ensure compliance with applicable laws and regulations.

If an employer chooses to conduct COVID-19 testing, just as with symptom or temperature checks, they must be conducted in a non-discriminatory basis. Specifically, employers must ensure that any mandatory testing requirements are consistent with the American with Disabilities Act (ADA) and are job-related and consistent with business necessity. Additionally, employers should consider how they want to handle any employees refusing to be tested and should seek legal advice in the development and application of any testing policies and procedures to ensure compliance with applicable laws and regulations. 

Additional guidance on COVID-19 testing and the U.S. Equal Employment Opportunity Commission (EEOC) and Americans with Disabilities Act (ADA) are available here.

What types of tests are available and what is the difference?

There are two types of COVID-19 tests: diagnostic tests and antibody tests. Each test serves a different purpose, is collected at different times during your infection, and is collected using different methods.

If an employer chooses to conduct COVID-19 testing, just as with symptom or temperature checks, they must be conducted in non-discriminatory  basis. Specifically, employers must  ensure that any mandatory testing requirements are consistent with the American with Disabilities Act (“ADA) and are job-related and consistent with business necessity. Additionally, employers should consider how they want to handle any employees refusing to be tested and should seek legal advince in the development and application of any testing polies and procedures to ensure compliance with applicable laws and regulations.

Diagnostic Tests

Viral diagnostic tests can determine if a person is currently infected with COVID-19 and should take steps to quarantine or isolate themselves from others to help prevent further spread. There are two types of diagnostic tests:

  • Molecular Tests
  • Antigen Tests

Given the current conditions of the COVID-19 pandemic, the ADA EEOC guidance permits safe and reliable molecular viral tests to determine if an employee has the virus and may “pose a direct threat to the health of others.”

Antibody Tests

Antibody tests can determine if a person was previously infected with COVID-19. The body’s immune system produces antibodies to fight infections; however, it can take 1–3 weeks for the body to produce antibodies and they may stay in the body after recovery.

Like many infections, COVID-19 results in the development of IgM and IgG antibodies. Antibodies help fight infections, but can take several days to weeks to develop and remain in your body after recovering from an infection. While more research is needed to understand how long COVID-19 antibodies can be detected in the body, IgM antibodies may be most useful for determining recent infection, since it is usually detectable weeks to months following an infection, while IgG antibodies take longer to develop following an infection and may remain detectable for months or years. 

Under the ADA, an antibody test constitutes a medical examination and does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing by employers prior to allowing employees to re-enter a workplace is not currently in alignment with ADA’s guidance and is currently prohibited under the ADA.

Additional details regarding the differences between diagnostic and antibody tests are provided in the table below:

 Viral Test (Molecular)Viral Test (Antigen)Antibody Test
This test is also called:Diagnostic test, viral test, molecular test, nucleic acid amplification test (NAAT), reverse transcriptase polymerase chain reaction (RT-PCR), Loop mediated isothermal amplification (LAMP) testRapid diagnostic testSerological test, serology, blood test, serology test
What does the test do?Results show if you are currently infected with COVID-19 and can help identify people who are contagious to others;
It will not show if you were infected with COVID-19 in the past
Results show if you are currently infected with COVID-19 and can help identify people who are contagious to others;
It may be more likely to miss an active infection compared to molecular tests (lower sensitivity)
Results show if you have previously been infected with COVID-19, even if you have not experienced symptoms; It will not diagnose active infection and sensitivity and specificity may vary across tests, possibly leading to unreliable results. Antibody test results should not be used to determine if someone can return to work.
How is the test sample collected?Same day, or up to one week, depending on if a test is run on-site or sent out to an off-site laboratoryTypically provides results faster than molecular tests; same day, depending on if a test is run on-site or sent out to an off-site laboratorySame day, or up to 1–3 days, depending on if a test is run on-site or sent out to an off-site laboratory
Is follow-up testing needed?This is a highly accurate test and typically does not need to be repeatedPositive results are usually highly accurate, but negative results may need to be confirmed with a molecular test after consult with a healthcare providerAccuracy is variable. A second antibody test may be required for accurate results
What does a positive test result mean?You have an active COVID-19 infectionYou have an active COVID-19 infectionYou may have previously had an active COVID-19 infection, but likely are not currently infected.
Additional research is being conducted to determine if the presence of antibodies means that you are immune to COVID-19 in the future
What does a negative test result mean?You did not have an active infection at the time the sample was collectedYou did not have an active infection at the time the sample was collectedYou may not have been previously infected with COVID-19; however, you could still have an active infection and the antibody test was collected too soon to give a positive result

There are also newer diagnostic tests for COVID-19, which may offer alternative methods and benefits:

  • Rapid, point-of-care tests: These diagnostic tests may be molecular or antigen tests. A mucus sample is collected from the nose or throat, which can be analyzed on-site at a doctor’s office or clinic and provide results within minutes. Additional research is needed to validate the accuracy of various point-of-care tests.
  • At-home collection tests: These tests, available by prescription only, allow you to collect the sample at home and send it directly to a lab for analysis. The sensitivity of these tests are lower than lab-based tests . 
  • Saliva tests: A saliva sample is collected by spitting into a tube, rather than collecting a nasal or throat swab, which may be more comfortable for some individuals.

What are the Testing Procedures?

All COVID-19 tests require an order from a healthcare provider. Therefore, the first step is to secure a physician’s order. Employers should work with testing sites and providers to determine the best way to obtain and manage physician’s orders. Some labs may offer fee-for-service options to assist in managing workplace testing procedures to best meet the needs of your business.

Diagnostic Tests

Many diagnostic tests were developed to detect the virus’s genetic material in a sample from the patient’s nose or throat, though some options may use a saliva sample. The typical process for a molecular test that uses a nasal or throat sample are:

  • A specialized swab is used to collect a mucus sample from the individual’s nose or throat. The swab is then put into a sterile container, sealed, and transported to a lab. Samples must be kept within a certain temperature range and arrive withing 72 hours in order to produce accurate results. 
  • The laboratory will notify the testing provider of results. 
  • Persons with positive test results will receive notification and will be contacted by the local health department for follow up, including questions about who they may have had contact with in the past 14 days. Individuals testing positive should consult with their healthcare provider for next steps. Additional guidance from the CDC is also provided here.

Antibody Tests

(not currently permitted to be required by employers under ADA )
  • A sample will be collected by drawing blood or via a finger stick and will be analyzed on-site or sent out to a laboratory for analysis.
  • The testing provider will notify the individual of results.
  • Persons with positive test results will receive notification and will be contacted by the local health department for follow up, including questions about who they may have had contact with in the past 14 days. Individuals testing positive should consult with their healthcare provider for next steps. 

The steps for testing for COVID-19 may change as new technology becomes available and more research is conducted.

What do my test results mean?

No test is 100% accurate all the time. Regardless of the test result, you should consult with your healthcare provider to determine the next steps you should take.

For Diagnostic Tests:

  • If your employee tests positive, have them consult with their healthcare provider and stay home and isolate themselves from others to prevent spreading the virus to others. Additional guidance on isolation is available here Individuals testing positive will be contacted by the local health department for follow up, including questions about who they may have had contact with in the past 14 days.
  • If your employee tests negative, that means they did not have COVID-19 at the time they were tested or that they were tested during the early part of infection, and did not have enough virus to be detected by the test. However, they could become infected in the future, so they should continue to monitor for symptoms, practice prevention measures, and stay home if any symptoms are exhibited.

For Antibody Tests:

(not currently permitted to be required by employers under ADA )
  • If an individual tests positive, antibodies for the virus were found and they were likely previously infected with the virus that causes COVID-19. Have them consult with their healthcare provider to determine next steps. 
  • If you test negative, antibodies were not detected by the test. However, you could become infected in the future, so continue to monitor yourself for symptoms, practice prevention measures, and stay home if you begin to exhibit any symptoms.

It is important to note that tests do not always perform the way we may expect them to, and results may not always be 100% accurate. For example, test results may occasionally result in:

  • False positives — this means a test result shows a positive result (e.g., viral RNA or antibodies are present), when they are not. 
  • False negatives — this means a test result shows a negative result (e.g., viral RNA or antibodies are not present) when they are. This may occur if you were tested early in your illness and your body has not produced detectable antibodies yet.

Employers should discuss test accuracy and reliability with any private-based testing provider your business is considering.

What Tests are Currently Authorized by FDA for COVID-19?

The FDA maintains a list of currently authorized tests which changes as new testing options become available. For additional information on individual molecular and antigen diagnostic tests, as well as serology antibody tests, click here.

What commercial laboratories perform COVID-19 testing?

*Provided for informational purposes only and should not be considered an endorsement of any product or company.

Laboratory NamePerforming FDA Approved Molecular TestPerforms Antibody TestWorkplace Testing Additional Information
On SiteOff Site
AdvaGenix
Aegis Sciences Corporation??Resource
AIT Labs
AKESOgen Labs??Resource
Aperiomics
Acrpoint LabsResource
Arup Laboratories
Assurance Scientific Labs
Bako Diagnostics
Bode Technology ?Resource (First responder communities & critical infrastructure)
Cian Diagnostics
Clarity Labs
Clinical Diagnostics Laboratories
Clinical Pathology Labs
Curative Inc.
Excelsior Diagnostics
Fulgent Genetics
GENETWORx??Resource
Integrated Cellular & Molecular Diagnostics
Ipsum Diagnostics
LabcorpResource
Mako Medical Laboratories??Resource (antibody only?)
MedArbor Diagnostics
Medical Diagnostics Labs
Next Molecular Analytics
P4 Diagnostix
Poplar Healthcare
Principle Labs
Quest Diagnostics?Resource
ResourcePath??Resource
StageZero Life SciencesResource
Sunrise Medical Laboratories??Resource
Tempus Labs
Tide Laboratories?
Vista Clinical Diagnostics (Danville)

How much do tests cost?

Generally speaking, the molecular tests are more expensive than the antibody tests. Testing may vary by testing type, provider, number of tests, and insurance status, so additional consultation may be necessary to obtain specific cost. For some, insurance may cover the cost of the test, but ancillary charges may be incurred. Furthermore, employers should also consider obligations under wage and hour laws to pay employees for their time to be tested, as well as time waiting for the results, assuming they are not allowed to work until results are available, if the employer is obligated to provide paid medical leave pursuant to the Families First Coronavirus Response Act or any other applicable law. Employers may also consider reimbursement for transportation to/from testing facilities.

For employers interested in testing as part of their comprehensive response strategy, there may be various approaches available to meet your business needs and resources, such as contracting with a commercial laboratory, coordinating with a local/regional medical facility to meet testing needs, or utilizing public testing in the local El Paso area.

Confidentiality

The Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) have certain requirements regarding confidentiality of medical information to protect the privacy of an individual’s health information.

Receiving and Storing Test Results

Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat. However, if an employee tests positive for or voluntarily discloses that they have been diagnosed with COVID-19, employers must keep this information confidential.

Similarly, if an employee voluntarily discloses (without a disability-related inquiry) they have a specific medical condition or disability that puts them at increased risk of COVID-19 complications, employers must also keep this information confidential. The employer may ask the employee to describe the type of assistance they think will be needed (e.g. telework or leave for a medical appointment.) and to provide verifiable medical information from their medical provider to support the request. Employers should not assume that all disabilities increase the risk of COVID-19 complications. Many disabilities do not increase this risk. Such determinations require the advice of a medical professional. Employers may be required to evaluate appropriate accommodations under the ADA and engage in an interactive process with employees to make such determinations. Employers should consult with legal counsel to determine their obligations under the ADA.

The ADA requires that all employee medical information be stored separately from personnel files to limit access to confidential medical information. Employers may store COVID-19 related medical information for employees in their existing medical files, including the following:

  • Employee statements notifying the employer that they have the virus or are suspected to have the virus
  • Documentation from symptom checks
  • Results from temperature checks.
 

Employers must ensure that such information is appropriately safeguarded to ensure compliance with ADA and HIPAA requirements. 

Consent / Authorization Forms 

Employers should treat COVID-19 testing requirements in the same manner as other medical examinations. Employers must obtain the informed consent of the employee prior to engaging in any testing procedures. The consent form should be clearly written to provide the employee with notice of testing requirements, procedures to be utilized, as well as information on any risks or limitations so that informed consent can be adequately obtained and documented. It is highly recommended that employers obtain legal advice in drafting an appropriate consent form specific to the testing requirements utilized. Employers should also provide the consent form in the language of the employee’s proficiency to avoid any concerns or misunderstandings with respect to any testing requirements.

Reporting Results

Employers may disclose the name of an employee to a public health agency upon learning that the employee has tested positive COVID-19. 

To support coordinated local response to the ongoing COVID-19 pandemic, employers should report all clinically suspected COVID-19 cases to the El Paso Department of Health in a timely fashion. 

 

What is case investigation and contact tracing? 

Upon learning that one or more employees have been diagnosed with COVID-19, employers should act quickly to minimize the spread, while also maintaining confidentiality, and avoiding alarm. COVID-19 is a nationally notifiable disease, and therefore, must be reported to the health department. Therefore, employers are encouraged to collaborate with the health department, as quick and coordinated actions, including case investigation and contact tracing may lower the need for business closures to prevent the spread of the disease. 

  • Case investigation is the identification and investigation of individuals with confirmed and probable diagnoses of a notifiable communicable disease, such as COVID-19.
  • Contact tracing follows case investigation and is a process to identify, monitor, and support individuals who may have been exposed to a person with a communicable disease, such as COVID-19.

What role does an employer play in case investigation and contact tracing?

An employer’s involvement with the official health department case investigation or contact tracing process may vary based on several factors, such as the size and type of workplace; the number of cases impacting the workplace; the health department’s capacity; local, state, and federal laws and regulations; and the level of interest and capacity of the employer. 

When the health department learns of a confirmed or probable case of COVID-19 who was in a workplace where close contact with others (employees, customers, or community members) may have occurred, the health department may contact the employer, employees, or customers to let them know of potential exposures. Confidential information about the infected individual, including their name and other personal identifying information, will not be revealed without their explicit permission. Employers can assist the health department by: 

  • providing further identification of potential contacts who worked in the same area and on the same shift or otherwise may have come into close contact (within 6 feet for 15 minutes or longer ) with the infected individual;
  • hosting a site visit for health department personnel to observe the workplace in order to make workplace-operation recommendations to help prevent further spread of the virus; and
  • facilitating communication with employees.

Prompt notification and follow-up reduces the risk that other employees will be exposed to the virus, therefore falling under the Occupational Safety and Health Administration’s general duty requirement to provide a safe workplace.

Employers may consult with their company’s human resources, legal, medical, and occupational safety and health guidance, policies, and other resources.
Additional information regarding employer involvement in case investigation and contact tracing activities may be found here.

Isolation and Quarantine Policies / Return-to-Work Policies

Upon learning that one or more employees have been diagnosed with COVID-19, employers should send home any employees who have had a risk of exposure to maintain social distancing and monitor themselves for any signs or symptoms.

Isolation and quarantine help to protect the public from infectious diseases by preventing further exposure to people who either have or may have a contagious disease.

  • Isolation separates sick people with a contagious disease from people who are not sick. Additional guidance on isolation can be found here
  • Quarantine separates and restricts the movement of people who were exposed to see if they may become sick. Additional guidance on quarantine can be found here

Recommendations for Discontinuation of Isolation for Those Testing Positive:

Accumulating evidence supports implementing isolation and precautions for persons with COVID-19 using a symptom-based strategy. Research has shown that people with mild to moderate COVID-19 remain infectious no longer than 10 days after their symptoms began, and those with more severe illness or those who are severely immunocompromised remain infectious no longer than 20 days after their symptoms began. Based on this, CDC has updated recommendations for discontinuing home isolation as follows:

  • Individuals with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:
    • At least 10 days* have passed since symptom onset, and
    • At least 24 hours have passed since the resolution of fever without the use of fever-reducing medications, and
    • Other symptoms have improved.

* A limited number of persons with severe illness may produce replication-competent virus beyond 10 days, that may warrant extending duration of isolation for up to 20 days after symptom onset.

  • Individuals with COVID-19 who never developed symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test. 
  •  

Recommendations for Quarantine for Persons known to have been exposed to COVID-19:

  • For individuals that have been in contact with someone who has tested positive for COVID-19, CDC recommends 14 days of quarantine after exposure. This is based on the time it takes to develop illness, if infected.

Note that recommendations for discontinuing isolation in persons known to be infected with COVID-19 could, in some circumstances, appear to conflict with recommendations on when to discontinue quarantine for persons known to have been exposed to COVID-19 (i.e., it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected).

These recommendations will prevent most, but cannot prevent all, instances of secondary spread.

FAQ’s for Employers

The questions below are taken from the Texas Workforce Commission

Q: What can an employer ask for if an employee tells us they are ready to return to work?

A:  A question that might come up is whether it is permissible for an employer to require a doctor’s release/fitness for duty certificate or something similar if an employee is returning from an absence caused by something that looks or acts like Covid-19. It would be good to keep in mind that many employees may have financial problems relating to the inability to pay to see a doctor, so employers should take that into account, and also that at least under current conditions, medical documentation should be requested only if a person is known to have been exposed to a communicable disease (not just coronavirus, but also things that are just as infectious, such as colds, flu, and other viral pests). Moreover, medical offices are almost overwhelmed, so issuing documentation will not be high on their priority lists, and tests for Covid-19 are not yet widely available. Finally, requests for medical documentation should be done consistently and fairly for all similarly-situated employees .

Q: Is an employer allowed to send an employee home if they are showing signs of illness, such as coughing, sneezing, or report that they have aches or chills?

A: Yes, in keeping with an employer’s general duty under OSHA to maintain a safe and healthy workplace for employees, employees who appear to be sick may be asked to go home, but do so as politely and discreetly as possible. However, the employer should be consistent and treat all employees who exhibit risky symptoms the same .

Q: What if we know that an employee has been exposed to Covid-19, but they are showing no symptoms?

A: Generally, there is no Texas or federal law that would prohibit a company from telling employees to stay home if they have had a higher-than-normal degree of exposure to individuals actually infected with the disease. As noted above, be consistent and do not base self-isolation orders on factors such as race or national origin. There have been scattered reports of ethnic discrimination, particularly against people who look like they might have come from Asia. The EEOC is already warning employers that singling employees out based on ethnic or national origin concerns could trigger a discrimination charge.

Q: Would the employer have to pay sick leave to that employee?

A: Yes, if the company offers such paid leave. Paid leave policies should be followed – failure to pay for leave owed under a written paid leave policy is a violation of the Texas Payday Law. A federal bill to require up to 80 hours of paid sick leave for full-time employees, H.R. 6201, has passed Congress and has been signed by the President as of March 18, 2020. The text of that bill is online, here.

Q: Could they file unemployment claims and draw unemployment benefits if they are told to go home for medical reasons?

A: No, if they are receiving paid leave benefits. While on paid medical leave, they would not be considered “unemployed” under TWC laws and would not be able to claim unemployment insurance (UI) benefits. Once the paid leave runs out, they could file unemployment claims.

Q: What if they are not getting paid leave?

A: If they are on unpaid leave, they could be considered unemployed if they are out long enough to satisfy the test for either partial or total unemployment (for those definitions, see Especially for Texas Employers online). 

Q: Does an employee get unemployment benefits even if they are too sick to work?

A: Any claimant who is able to file a claim for UI benefits must meet the eligibility requirements in order to actually draw benefits. Most notably, the claimant must be medically able to work. The usual eligibility requirement to search for work has been waived by TWC for the immediate future as part of the pandemic relief effort.

Q: Is there any way an employer can avoid the cost of unemployment benefits?

A: An employer may be eligible for protection from chargebacks from UI benefits if the evidence shows that the work separation was for medical reasons. However, if the reason for the work separation was merely a cautionary period of time off to minimize potential exposure of others to someone who might be infected, but might not be, chargeback protection would most likely not be extended to the employer. To minimize the chance of unemployment claims being filed, the employer can encourage employees to work from home if the job is such that remote work is possible. Proper recording of work time is necessary, and the employer would need to work with the employees to set up a timekeeping system that functions well and takes all time worked into account.

  • Additional information and resources on COVID-19 for Texas Employers provided by the Texas Workforce Commission, click here
  • Additional information on OSHA’s Guidance on Preparing Workplaces for COVID-19 is available here.

Best Practices for Policies and Practices that are Flexible and Supportive:

  • Employers and/or a designated COVID-19 coordinator, should monitor federal, state, and local public health communications about COVID-19
  • Reinforce protective measures employees can take to protect themselves and others from COVID-19
  • Establish a plan for conducting daily in-person or virtual health checks for employees prior to entering the facility
  • Conduct a hazard assessment of the workplace and provide appropriate engineering, administrative, and personal protective equipment (PPE) options to reduce exposure
  • Proactively plan for what to do if an employee is sick at work, and develop and implement an action plan for suspected and confirmed cases, including backup plans for absent employees
  • Establish and implement sick leave policies that are flexible and supportive
  • Document, clearly communicate, and train employees on supportive workplace policies
  • Assess essential functions and the reliance on others
  • Maintain a healthy work environment, including implementing controls to protect employees and the public
  • Encourage employees to notify their supervisor and stay home
  • proactively document their Isolation and Quarantine/Return to Work Policies and train workers on how the policies to reduce ensuring that all employees are aware of the policies.
  • Employers should allow employees to stay home, without penalty

DISCLAIMER: This Back to Work Toolkit is intended to provide employers with general guidance and information on how to reduce potential exposure to COVID-19 in the workplace and does not constitute legal or medical advice. Business owners are highly encouraged to obtain legal advice on any business plan, including the development of any corresponding policies and procedures, specific to their individual workplace, jurisdiction, and circumstances to ensure compliance with applicable health orders, laws and regulations. Due to the ever-changing situation related to COVID-19, it is critical that business owners stay abreast of important legal updates and maintain appropriate flexibility in the administration of their policies in this regard.