A Testing Dilemma In Returning To Work Scenarios And The Governor's Most Recent Executive Order

• Published date: 14 December 2020
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employee Rights/ Labour Relations, Employment and Workforce Wellbeing, Operational Impacts and Strategy
• Law Firm: Littler Mendelson
• Author: Ms Anabel Rodríguez-Alonso

By Anabel Rodríguez-Alonso and José L. Maymí-Gonz'lez*

Almost a year into the pandemic, a question that plagues the minds of many employers is how to reintegrate employees who have been exposed to COVID-19, while simultaneously safeguarding the wellbeing of coworkers and clients. The debate centers around whether employers can require employees to provide a negative COVID-19 test as a condition for reentry into the workplace and the legal consequences of doing so. For guidance, employers and agencies have turned to the Centers for Disease Control and Prevention (CDC) and its guidelines to shine some light on this murky issue. The answer, however, is not as clear-cut as one might think. In Puerto Rico, the dilemma was further complicated last week with Governor Wanda Vazquez Garced's Executive Order 2020-087, which went into effect December 7, 2020.

CDC Guidelines on Testing

First and foremost, employees who have been exposed, or have suspected exposure, to COVID-19 should not consider returning to work until they meet the CDC criteria to discontinue home isolation. Littler recently published an overview of the new CDC quarantine guidelines. To determine when a worker can return to work, the CDC has recognized three strategies. First, a symptom-based approach whereby the worker can return 10 days after the onset of symptoms and 24 hours after their last fever and improvement in symptoms. Second, the time-based strategy, by which asymptomatic persons wait 10 days since their first positive COVID-19 test. Third, the test-based strategy, which could be considered for severely immunocompromised persons or for asymptomatic individuals who have had close contact with a confirmed COVID-19 case and wish to end isolation earlier than under the time-based approach. The CDC acknowledges that "[t]esting guidance is based on limited information and is subject to change as more information becomes available." The CDC, however, has stated that "[e]mployers should not require an employee who had been diagnosed with COVID-19 to provide a negative COVID-19 test result or healthcare provider's note to return to work."¹ (Emphasis added). The Puerto Rico Health Department has also echoed the CDC's "should not" position with respect to the latter, test-based strategy. Instead, the CDC recommends employers rely on either a symptom-based or time-based approach when deciding when to end isolation and allow a return to work.

Employers opting for the test-based strategy need not be...