Sep 17, 2021 • Teo Spengler, J.D.; FINDLAW/BLOGS/LAW AND DAILY LIFE

Is it Legal To Ask for COVID-19 Test Results?

As the nation is rocked by a new surge of COVID-19 cases, employers are taking extra steps to keep the virus out of the workplace. A number of big companies and state employers are requiring unvaccinated employees to get tested regularly. That has workers asking questions.

Is it legal for a company to require employees to get tested for COVID-19 and share their results? It may feel intrusive for your boss to require COVID-19 testing, but it is perfectly legal in most cases.

Asking for COVID-19 Test Results

Several federal laws protect your right to keep your medical information private. One of them is the Americans with Disabilities Act (ADA), best known for prohibiting workplace discrimination against disabled employees. The law also forbids employers from requiring medical testing unless it is job-related and necessary for the business.

An employee with a contagious disease is a different story. Under the ADA, it is permissible to test for an illness that poses a direct threat to others in the workplace. Government health authorities have determined that COVID-19 poses this kind of threat since it transmits easily and can hospitalize and kill people. That means that an employer can require coronavirus screening and testing in the workplace under the ADA.

HIPAA and COVID-19 Test Results

The Health Insurance Portability and Accountability Act (HIPAA) is another federal law that protects medical privacy. It makes it illegal for health care providers to share your medical information without your consent.

Some people think that, under HIPAA, employers cannot ask an employee whether they tested positive for COVID-19. However, this is not true. HIPAA does not apply to employers. The law only applies to health care providers and health plans.

State COVID-19 Testing Restrictions

State laws can also impact these issues. Some states prohibit vaccine mandates, but the laws are not all the same. Some only apply to state agencies, preventing them from requiring residents to get vaccinated before seeking state services. Other laws apply to the private sector as well. Florida’s law, for example, prevents businesses from requiring customers to show proof of vaccination to enter. It does not apply to employers.

Montana’s law, however, does apply to employers. It may be the most restrictive vaccine mandate ban, prohibiting employers from treating vaccinated workers differently from those who are not vaccinated. In this case, an employer may simply require every employee, regardless of vaccination status, to submit to regular COVID-19 testing.

But do these state laws prevent your boss from asking you about your vaccine status or COVID-19 test results? The answer seems to be no. Although the question has not been reviewed by the courts yet, according to the U.S. Equal Employment Opportunity Commission, private employers have the right to ask about the vaccination status of employees.

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