CDC’s expanded guidance for workplace COVID-19 testing

The CDC has released new advice focused on securing informed consent from employees for workplace testing for COVID-19. This builds on earlier advice the CDC released last fall regarding workplace testing programs. Since the CDC notes that employers should not conduct testing without an employee’s informed consent, employers should be prepared to address employee questions and concerns using the recommendation framework outlined below.

Informed Consent and CDC Recommended Actions for Employers

The CDC states that employers should not perform COVID-19 testing without an employee’s informed consent, which encompasses the following: (i) disclosure, (ii) understanding, and (iii) free choice. The CDC has identified these as helpful for an employee to “act independently and make choices based on their values, goals, and preferences.” To satisfy these three elements, the CDC recommends that employers take the following steps when developing a COVID-19 testing program:

  • Make sure safeguards are in place to protect an employee’s privacy and confidentiality.

  • Provide complete and understandable information on how the employer’s testing program may impact employees’ lives, such as whether a positive test result or refusal to participate in testing may mean exclusion from work .

  • Explain any parts of the testing program that an employee would consider particularly important when deciding whether or not to participate. This is to explain the main reasons that can guide their decision.

  • Provide information about the test program in the employee’s preferred language using non-technical language. Consider getting employee feedback on the readability of the information.

  • Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.

  • Encourage and answer questions during the consent process. The consent process is an active sharing of information between an employer and its representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes employee choice.

The CDC also notes that certain aspects of the testing program may be more relevant than others to an employee’s decision whether to accept a proposed test, and therefore an employer’s disclosures should include the following information about the COVID-19 testing:

  • The manufacturer and name of the test;

  • The purpose of the test;

  • The type of test (for example, PCR or rapid);

  • How will the test be done (e.g. nasal exchange or saliva sample);

  • Known and potential risks of harm, discomfort and benefit from the test;

  • What it means to have a positive or negative test result, including:

    • Reliability and limits of the tests; and

    • Public health advice to isolate or quarantine at home, if applicable.

The CDC also offers guidance regarding basic considerations and questions an employee might have about an employer’s testing program. With respect to a testing program in general, the CDC recommends that employers be prepared to address the following general topics:

  • Why does the employer offer to test its employees?

  • How often will employees be tested and will they be asked to consent to each test?

  • What happens if an employee refuses to be tested?

In addition, the CDC recommends that the employer be prepared to answer questions about scheduling, payment, testing site, and reporting of results, such as:

  • Does the employee have to schedule the test and come to the site?

  • Will the employer pay for the employee’s time and travel?

  • Who will pay for the test?

  • Who will administer the test and what are their qualifications?

  • Where will the test be performed?

  • Will the test provider require screening before administering the test?

  • When will the results be communicated to employees and in what confidential manner?

  • What happens if the employee is negative?

  • What happens if the employee tests positive?

Finally, the CDC recommends that employers be prepared to answer questions related to employee privacy. Although an employee’s work-related test records are generally not covered by HIPAA, employers should nevertheless strive to keep this information confidential so as not to trigger legal or common law obligations that could protect an employee’s personal information.

Key points to remember

The CDC’s guidance provides employers with a roadmap to follow when implementing a workplace testing program. While the guidelines include recommendations and considerations for employers on how best to ensure employees are comfortable agreeing to participate in a testing program, they ultimately do not preclude employers of requiring tests before entering the workplace.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC All rights reserved.National Law Review, Volume XI, Number 36

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