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:
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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.