As employers continue to face challenges with their employees return to the workplace,
the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for
businesses and employers on SARS-CoV-2 testing of their employees. While the CDC
had released some guidance on workplace testing previously, with the last updates
occurring in October of 2020, the guidance issued on January 21, 2021, places a new
emphasis on informed consent prior to testing and the measures an employer can take
to ensure employees are fully supported in their decision-making.
The CDC’s guidance states:
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 according to their values, goals, and preferences.
For employers that have required employees to submit to COVID-19 viral testing in
order to enter the workplace consistent with Equal Employment Opportunity
Commission (EEOC) guidance, the CDC’s reference to an informed consent may be
untimely. However, while the CDC’s guidance appears to set standards for meaningful
informed “consent,” it does not appear to prevent employers from requiring testing that
does not include all of the “elements of consent” and “recommended disclosures”
referenced in the guidance. Nor does it appear to prevent employers from requiring
testing as a condition of entering the workplace. The CDC’s guidance clearly
recommends, however, that employers provide employees:
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.
Initial Considerations
When developing a SAR-CoV-2 testing program, according to the CDC, an employer
should first address some basic considerations. For example:
Why is the employer offering the test to begin with
How frequently will employees be tested
How to effectively obtain employee consent
What to do if an employee declines to be tested
Measures to Implement
The CDC provides a list of key measures an employer should implement when
developing an SAR-CoV-2 testing program in the workplace to ensure employee
informed consent and a supportive environment:
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, 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. Employers can use this tool provided by the CDC
to create clear messages.
Encourage supervisors and coworkers 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.
For more information: https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/workplace-testing-consent-elements-disclosures.html
