New CDC Guidance Requires Informed Consent for Workplace COVID-19 Testing

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On January 21, 2021, the United States Center for Disease Control (“CDC”) issued new guidance for non-healthcare employers who conduct workplace COVID-19 testing. The CDC states that while testing for COVID-19 may be incorporated as part of a comprehensive approach to reducing transmission in non-healthcare workplaces, the testing should not be conducted without employees’ informed consent.
 
According to the CDC, “informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.” To fully support employee decision-making and consent, the CDC recommends employers take the following measures when developing a 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 or 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 identifies disclosures important for employees to consider when contemplating testing. Many of these disclosures are addressed in the U.S. Food and Drug Administration (FDA) emergency use authorization patient fact sheet for the test, which must be provided to an individual consenting to testing. Those disclosures, which should be made to employees, include:
  • The manufacturer and name of the 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
  • What it means to have a positive or negative test result, including:
    • Test reliability and limitations
    • Public health guidance to isolate or quarantine at home, if applicable

Employers who choose to conduct workplace COVID-19 testing should implement a plan that addresses topics such as how frequently will employees be tested, will employees be asked to consent to each test and what happens if an employee declines to be tested. Employers should also take into account scheduling and payment of the tests, who will be administering the test and where it will be performed, communication and interpretation of results, and employee privacy concerns.

Employers should be cautious when implementing COVID-19 testing programs in the workplace and be sure to have a plan/policy in place that is clearly communicated to employees. In order to avoid legal exposure, it is advisable that employers that do decide to mandate testing utilize an unrelated third-party provider to do so. Should you have any questions regarding these new guidelines, please contact ALG.

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This material is for informational purposes only and is not intended to constitute legal advice.