Grinberg: COVID 'Breathalyzer' Test Could Be Answer to Workplace Legal Issue

Tuesday, April 19, 2022 | 0

Let’s talk COVID and technology. More specifically, the Food and Drug Administration has approved a "breathalyzer" test for COVID-19, which reportedly produces results in three minutes with a 91% accuracy rate.

Gregory Grinberg

As many practitioners did, I looked ahead and anticipate the issues that will go to trial over COVID-19 and the various vaccine rules. Is an employee engaged in “serious and willful” misconduct by refusing to vaccinate?

If an employer’s vaccine mandate is the only reason an injured worker is not being returned to modified duty, is the injured worker still entitled to temporary total disability?

Is an employer’s different treatment of unvaccinated employees sufficient to give rise to psych and stress claims?

Well, perhaps this can be the answer. Instead of requiring proof of current vaccination status, perhaps an at-work screening for COVID-19 positivity is a better solution. After all, it is now pretty solidly established that the vaccinated can both catch and transmit the disease, as we’ve seen in some recent examples, so wouldn’t it be sounder policy to breath test all employees as they arrive to ensure no one is bringing COVID-19 to work?

This is a device and method worth watching, as it may offer a relatively pain-free solution to the animated (and sometimes violent) debate we’ve seen played out nationally and internationally about the balance of rights and responsibilities in public. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.