As the COVID-19 pandemic continues, law enforcement professionals bravely continue to perform their duties and come in regular contact with the public, potentially exposing themselves to the virus. Concerned for the safety of their officers and the communities they serve, law enforcement agencies are pondering the permissibility and wisdom of large-scale testing. Is it permissible for agencies to require all officers to be tested for COVID-19? Is it wise? What about testing of officers who exhibit symptoms or were exposed to persons who are known to have tested positive?
Federal, state, and local authorities have published guidance that can inform agency decisions, but does not answer all questions agencies may have. On April 19, 2020, the California Department of Public Health published updated interim guidance on prioritization for COVID-19 lab testing. This guidance divided potential persons to be tested into four Priority groups, and placed symptomatic law enforcement personnel in the second highest priority, labeled Priority 2. Priority 1 consists of hospitalized patients, symptomatic healthcare workers, persons identified by public health contact investigators and disease control activities in high-risk settings such as congregate living facilities and correctional facilities.
The City of Los Angeles and County of Los Angeles, for example, jointly announced on April 22 that COVID-19 testing would be made available to certain classes of persons, including law enforcement professionals and other first responders, free of charge. Agencies in other jurisdictions should stay abreast of their local testing programs.
The Food and Drug Administration (FDA) has given emergency approval to certain antibody tests, also known as serological tests, for first responders, and expects to approve more such tests. These tests do not test for COVID-19 itself, but instead for antibodies the body develops to fight the virus. It is not clear how much utility there is to antibody tests. First, antibody tests are prone to false negatives, as the immune system does not begin producing antibodies immediately upon acquiring the virus, and therefore, a person could be infected with the coronavirus and test negative on an antibody test. Further, the FDA and the World Health Organization both caution that, unlike, for example, the chicken pox, there is no evidence that being infected with COVID-19 once and developing antibodies will prevent a person from being infected a second time.
Requiring an employee to submit to a COVID-19 test is a medical examination and therefore, like temperature testing, must satisfy the “business necessity” standard under both state and federal law. On April 23, 2020, the federal Equal Employment Opportunity Commission (EEOC) issued Technical Assistance Questions and Answers that indicate that, from the EEOC’s perspective, business necessity does exist to test employees for COVID-19. The Department of Fair Employment and Housing, the California agency tasked with enforcing analogous state statutes, has not published any guidance one way or the other on the question.
However, given the frequency with which law enforcement officers come in contact with the public, required testing may be of questionable efficacy and only provide a false sense of security. As the EEOC Technical Assistance Questions specifically note, “accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.” Testing asymptomatic officers only shows that they have not acquired the virus as of the moment of the test; they may be exposed on their very next call for service. Therefore, testing an asymptomatic peace officer on any given date for COVID-19 may not have significant advantages to the officer, the department, or the public beyond those already provided by daily pre-shift temperature testing and rigorous PPE and sanitizing practices. It may be more efficient for a department instead to only mandate testing for employees who exhibit symptoms or who have been exposed to persons confirmed to have the virus. If an agency does decide to require or facilitate COVID-19 testing for officers or other employees, it is essential to be mindful of the employee’s privacy rights. In order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver form the employee being tested. The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)
Ultimately, there is no one-size-fits-all solution; agencies considering requiring testing of some or all of their peace officers should consult with trusted counsel.