The U.S. Centers for Disease Control and Prevention (CDC) recently issued new guidance for employers around testing protocols, “SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces.” Design firms seeking to reopen offices or reunite all employees in a normal office setting should be aware of the guidance.
The CDC recommends incorporating COVID-19 testing in these five scenarios:
Testing Symptomatic Individuals
The most relevant scenario for most design firms is testing employees exhibiting COVID-19-related symptoms, such as when symptoms are identified during daily screening before employees enter the workplace. The CDC suggests that employees with symptoms should be immediately separated from others and sent home or to a healthcare facility. If the employee tests positive, the employee should not come to work and should isolate at home until the employee satisfies the CDC’s criteria for discontinuing home isolation.
Testing Individuals Exposed to the Virus
The guidance envisions the use of viral testing for those in close contact with someone who has COVID-19, such as other employees who were within six feet of an infected employee for 15 minutes or longer. In this context, the CDC notes that such testing is often initiated by or conducted in consultation with state or local public health authorities as part of a tracing effort. Of course, early testing after exposure at a single point in time may miss many infections, but the contact tracing could track potential spread from the infected employee.
Testing Individuals Who Have Not Been Exposed to the Virus
The CDC suggests that a third application for COVID-19 testing is to help identify asymptomatic infected employees without any known or suspected exposure, particularly in workplaces where social distancing is difficult. The CDC states that employers may consider different testing approaches, such as “initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, and/or targeted testing of new workers or those returning from a prolonged absence.”
Testing for Discontinuing Isolation
The fourth application for testing is to determine when an employee may safely discontinue isolation and return to an office environment. In this context, the CDC states that the determination of whether to use a symptom-based, time-based, or test-based strategy should be “made in consultation with healthcare providers and public health professionals.” The CDC acknowledges that under the Americans with Disabilities Act, “employers are permitted to require a healthcare provider’s note to verify that employees are healthy and able to return to work.” Nevertheless, the CDC continues to warn that such documentation may be difficult to acquire from certain providers that “may not be able to provide such documentation in a timely manner.”
Testing for Public Health Surveillance Purposes
The CDC states that COVID-19 testing also may be used for public health “surveillance” purposes to detect transmission hot spots or better understand disease trends in a workplace. While the CDC notes that surveillance “should only be undertaken if the results have a reasonable likelihood of benefiting workers,” this scenario may be premature for consideration by design firms absent further guidance from the U.S. Equal Employment Opportunity Commission (EEOC). At present, the EEOC’s guidance has approved of COVID-19 testing only in the context of determining if employees are safe to enter the workplace, and it is unclear whether a “surveillance” testing program would be deemed lawful under the ADA.
In addition to the discussion of the above outlined scenarios, the CDC provides these additional takeaways for employers:
- The recommended testing strategies should be implemented as a supplement to other federal, state, and local health and safety laws applicable to the workplace and not as a replacement to other legal requirements. The CDC notes that any testing should be carried out in a manner consistent with applicable employment laws, including with respect to employee privacy and confidentiality, and in accordance with published guidance from the EEOC.
- The use of COVID-19 testing “may be incorporated as part of a comprehensive approach to reducing transmission in workplaces,” which includes other precautions, such as symptom screening and contact tracing, to help identify infected workers and take appropriate action “to slow and stop the spread of the virus.”
- Employees undergoing testing should receive “clear information” regarding the manufacturer and name of the test, the type of test, the purpose of the test, the reliability of the test, any limitations associated with the test, who will pay for the test, and how the test will be performed. And employers should clarify to employees how to understand what the results mean, actions associated with negative or positive results, who will receive the results, how the results may be used, and any consequences for declining to be tested. The CDC also states that employees should receive “patient fact sheets” as part of the test’s emergency use authorization from the U.S. Food and Drug Administration.
- The U.S. Occupational Safety and Health Administration has issued interim guidance, finding that COVID-19 is a recordable illness and outlining when an employer may be required to record an employee’s infection on the OSHA Form 300 log and/or report an employee’s illness.
- While viral tests may be used to determine if an employee is currently infected with the virus, antibody tests should not be used as the sole basis to determine a current infection and “should not be used at this time to determine if an individual is immune.” Similarly, the EEOC recently issued guidance on antibody testing, stating that under the ADA, employers may not use antibody tests as part of their employee screening programs to determine if employees are safe to enter the workplace.
This new guidance is at a relatively high level and raises additional legal questions, such as whether and to what extent an employer may unilaterally implement a “surveillance” testing program in the workplace without violating the ADA. Employers considering testing may want to review these guidelines carefully and evaluate additional requirements and guidance from the relevant state and local governments and public health authorities prior to implementing any large-scale testing program.
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