Centers for Disease Control Expands COVID-19 Testing Guidance

On January 21st, 2021, the U.S. Center for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on COVID-19 testing for employees.  The guidance, in part, offers a more comprehensive approach to reducing virus transmission in non-healthcare workplaces. Previously, the CDC released similar “return-to-work” guidance in October 2020. The newly released guidance, however, places a new emphasis on informed consent prior to testing. There is also information on what measures employers can take to ensure employees are fully supported in their decision making.

Overview of the Guidance

As mentioned earlier, informed consent is the main focus of the CDC’s latest release. Specifically, the guidance contains the following statement:  “Workplace-based testing should not be conducted without the employee’s informed consent. Informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices…”  Additionally, the guidance does not prevent employers from requiring testing as a condition of entering the workplace. In fact, the guidance even recommends that employers provide employees: “. . .complete and understandable information about how the employer’s testing program may impact employees’ lives. . .” Examples of such situations include how a declination from the employee to participate in testing may mean exclusion from work.

 Key Provisions

In developing a COVID-19 testing program, the guidance includes a list of key measures employers should implement:

• Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
• As noted above, provide complete and understandable information about how the employer’s testing program may impact employees’ lives. For example, this can include a positive test result or refusing to participate, which may mean exclusion from work.
• Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
• Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
• Encourage supervisors and coworkers to avoid pressuring employees to participate in testing.
• Answer and encourage questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee. During that process, employers should disclose the information, answer questions to facilitate understanding, and promote the employee’s free choice.

In addition, in order to ensure informed consent, an employee must receive certain disclosures regarding the workplace testing program. Employees must receive these disclosures during the consent process, prior to agreeing to take the test.

Employer Takeaways

In addition to the CDC guidance, employers need to also consider various privacy and security issues. Under some state and local laws, COVID-19 testing results fall under confidential medical information. Additionally, some states like California and Florida consider “medical information” to be a form of “personal information.” Many federal and state laws require employers to safeguard any employee personal information. As such, maintaining policies and protections to protect all employee personal information (including health records) is imperative.