A little late to the party, the Centers for Disease Control and Prevention (CDC) recently issued a new guidance that requires employers to obtain informed consent from employees before testing them for COVID-19.
Last October, the CDC released its original guidance on employer testing, but didn’t get around to issuing the revised guidance containing the informed consent requirement until Jan. 21. The new guidance also includes measures an employer can take to ensure employees are fully supported in their decision-making.
The new 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.”
Another earlier guidance issued by the Equal Employment Opportunity Commission (EEOC) also directed employers to obtain informed consent before testing, note attorneys for the law firm of Jackson Lewis. Many state and federal directives also stress the role of testing when sending workers home and allowing them to return to work after they have recovered from the disease.
In its new guidance, CDC urges employers to provide the workers who will be tested with “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.”
When an employer is developing a COVID-19 testing program, the CDC recommends that the following basic considerations be addressed:
• 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.
Implement Key Measures
The CDC also offers a list of key measures an employer should implement when developing a testing program to ensure that an employee’s informed consent is obtained and a supportive environment is created. They are:
• Make sure 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 occurs or that a 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.
The Jackson Lewis attorneys remind employers that, in order to ensure informed consent, an employee must be provided with certain disclosures regarding the workplace testing program.
These must include disclosures required in the Food and Drug Administration emergency use authorization patient fact sheet for the particular test, such as the type of the test, how the test will be performed, and known and potential risks.
“Importantly, these disclosures must be provided during the consent process; meaning, employers will have to know this information and ensure it is provided to employees prior to the employee agreeing to the test,” the attorneys stress.
They say employers need to consider which aspects of the testing program may be more relevant than others to an employee’s decision about whether to accept an offered test and include the appropriate disclosures. Other areas to consider include the process for scheduling tests and how the cost of the tests will be covered; and what employees should expect at the testing site, such as screening.
Other such considerations should include covering what will be the recommended next steps that are expected to occur if an employee tests positive, and what assistance will be made available should an employee be injured while the test is administered.
Securing Employee Privacy
Privacy and security issues are top priorities to consider when implementing such a program, the attorneys warn. For example, employers must consider what personal information must be supplied to the test provider (for example, name, date of birth, insurance and other information), the test results to follow, and the myriad of issues that arise once that information is obtained.
The employer must look at whether, where and for how long the organization will retain the results. Other questions that need to be answered include how will personal information be kept confidential and secure, and how will the employer keep the results confidential and secure, along with who will have access to the results?
Employee test results are considered confidential medical information and, while not subject to the Health Insurance Portability and Accountability Act (HIPAA) in the employer-employee context, this information may be protected under state and common law.
“Consider, for example, that some states, (such as California and Florida) include ‘medical information’ as part of the definition of ‘personal information’ under their breach notification laws,” the attorneys point out. “Accordingly, if that information is breached, which could include access to the information by an unauthorized party, notification to affected individuals and relevant state agencies may be required.”
In addition, they remind employers that statutory and common law obligations mandate that employers safeguard employee personal information, which may include information about their physical health, such as the test results or information provided by the employee before taking the test.
“Thus, maintaining reasonable safeguards to protect such information is prudent,” the Jackson Lewis attorneys say. This could include access management measures, and record retention and destruction policies. It also may include clear guidelines for making disclosures of this information and whether authorization is needed before it may be disclosed to, or accessed by, a third party.
The attorneys also remind employers that workplace temperature and symptom screening protocols have been mandated or recommended by nearly every state and city across the country. “These measures are essential in halting the spread of the virus and ensuring a safe and healthy workplace and workforce. Nevertheless, organizations must consider the legal risks, challenges and requirements before implementing such measures.”
