The CDC has issued new guidance focused on ensuring employees’ informed consent for COVID-19 testing in the workplace.  This builds on earlier guidance the CDC issued regarding workplace testing programs last fall.  Because the CDC notes that employers should not conduct testing without an employee’s informed consent, employers should be prepared to answer employee questions and concerns by utilizing the recommend framework discussed below.

Informed Consent and the CDC’s Recommended Measures for Employers

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

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

• Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing 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.

• 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 active information sharing between an employer of their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free 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 an offered test, and thus an employer’s disclosures should include the following information about the COVID-19 test:

• The manufacturer and name of the test;

• The test’s purpose;

• The type of test (e.g., PCR or rapid);

• How the test will be performed (e.g., nasal swap or saliva sample);

• Known and potential risks of harm, discomforts, and benefits of the test;

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

  • Test reliability and limitations; and

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

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

• Why is the employer offering to test employees?

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

• What happens if an employee declines to be tested?

Further, the CDC recommends the employer be prepared to answer questions about scheduling, payment, the testing site, and communication of the results, such as:

• Is the employee obligated to schedule the test and travel to the site?

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

• Who will pay for the test?

• Who will be administering the test and what are their qualifications?

• Where will the test be performed?

• Will the test provider requirement any screening prior to administering the test?

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

• What happens if the employee tests negative?

• What happens if the employee tests positive?

Finally, the CDC recommends that employers be prepared to answer questions related to employee privacy.  While an employee’s work-related testing records are not covered by HIPAA generally, employers should nonetheless strive to keep this information confidential so as not to trigger any statutory or common law obligations which may protect an employee’s personal information.

Key Takeaways

The CDC’s guidance provides employers a roadmap to follow when implementing a workplace testing program.  While the guidance is comprised of recommendations and considerations for employers on how best to ensure employees are comfortable agreeing to participate in a testing program, it ultimately does not prevent employers from requiring testing prior to entering the workplace.