Recently, the Centers for Disease Control (CDC) released further guidance on workplace COVID-19 testing, which recommends employers obtain employees’ informed consent prior to conducting testing. While the Equal Employment Opportunity Commission (EEOC) has confirmed in prior guidance that employers can require employees to undergo COVID-19 testing prior to entering a workplace, the CDC guidance provides employers with considerations and recommendations on how to implement a COVID-19 testing program.
The CDC recommends the following:
- Employers should obtain employees’ informed consent prior to conducting workplace testing.
- Employers should provide disclosures to employees with the Food and Drug Administration patient fact sheet, which provides details surrounding COVID-19 testing and implications of a positive test.
- Employers should design a testing policy that addresses the employer’s testing program, the scheduling and payment of the tests, testing sites, and the communication and interpretation of the results.
Employee Informed Consent and Disclosures
The CDC states that workplace testing should not be conducted without employees’ informed consent. Informed consent must include disclosure, understanding, and free choice. The CDC outlines recommendations on how employers can support these three components of informed consent below.
Understanding and Free Choice
To support employee decision making and consent, the CDC recommends employers take the following measures when developing a COVID-19 testing program:
- Ensure safeguards to protect employees’ privacy and confidentiality;
- Provide information about how the employer’s testing program may impact employees’ lives (e.g., a positive test result or refusal to undergo testing may mean exclusion from the workplace);
- Explain parts of the testing program that an employee would consider important when deciding to participate;
- Provide information about the testing program in employees’ preferred language and in an understandable manner (the CDC provides this tool to create clear messages);
- Encourage supervisors and co-workers to avoid pressuring employees to participate in testing; and
- Encourage and answer questions during the consent process (e.g., employer discloses information, answers questions to facilitate understanding, and promotes free choice).
Employers should disclose information to employees on the testing program that may be relevant in employees’ decision whether to undergo testing. The CDC outlines disclosures that would be important to provide to employees in their guide, Testing Strategy Considerations for Non-Healthcare Workplaces. Disclosures to employees should contain the following:
- The U.S. Food and Drug Administration (FDA) emergency use authorization patient fact sheet;
- The manufacturer and name of test;
- The test’s purpose;
- The type of test;
- How the test will be performed;
- Known and potential risks of harm, discomforts, and benefits of the test; and
- What it means to have a positive or negative test result, including test reliability/ limitations and public health guidance to isolate or quarantine at home (if applicable).
COVID-19 Testing Policy Considerations
Employers should be prepared to address topics on the employer’s testing program, scheduling and payment of tests, testing sites, and the communication of results, including:
- How frequently employees will be tested, and whether they will be asked to consent each time;
- Response or action if an employee declines to be tested;
- Available accommodations or alternatives for an employee who declines to be tested;
- Testing location(s) and cost;
- Timing of test results and how they will be kept confidential;
- Result of an employee testing positive (including when the employee can return to the workplace, whether there are leave or other benefits available, whether the employee will be paid for lost work time, and if/how the employee’s benefits will be affected); and
- How employees’ information will be kept confidential and secure.
For a comprehensive list of the CDC’s recommendations on employer testing programs, see the CDC guidance.
Equal Employment Opportunity Commission (EEOC) Guidance
The EEOC, which enforces federal workplace anti-discrimination laws, has stated in prior guidance that employers may take screening steps to determine if employees entering the workplace have COVID-19. Employers can administer COVID-19 testing or ask employees physically entering the workplace if they have been tested for COVID-19.
The EEOC guidance provides how employers can implement strategies to navigate COVID-19 in the workplace (including COVID-19-related inquiries and medical testing, confidentiality of medical information, hygiene in the workplace, medical disclosures, and vaccine requirements) in compliance with relevant federal workplace anti-discrimination laws. We breakdown the EEOC guidance in our prior blog posts, linked here and here.
Employers should determine whether employees entering the workplace must undergo COVID-19 testing. If employers decide to require testing, employers may want to design policies that address employee consent, what/when disclosures will be provided to employees, confidentiality of employee medical records, as well as the additional considerations addressed in the CDC guidance.
Sequoia’s Return to Work Center has COVID-19-related policy design and employee screening capabilities that provide a streamlined solution to address challenges and help your business more confidently stay compliant. Please reach out to your Sequoia Client Service team to learn more about how our Return to Work Center can assist you.
- CDC Workplace Testing: Consent Elements and Disclosures
- CDC Workplace Testing: Considerations for Non-Healthcare Workplaces
- FDA Emergency Use Authorization Patient Fact Sheet
- EEOC Guidance on COVID-19, the ADC, the Rehabilitation Act, and Other EEO Laws
- Sequoia Blog: Can Employers Require Employees Obtain the Vaccine?
- Sequoia Blog: Compliance Considerations when Designing COVID-19 Return to Work Policies
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2021 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved