Recently, CDC issued additional guidelines addressing mandatory testing as part of an employer’s COVID-19 prevention plan. In particular, CDC cautioned employers that “workplace-based testing should not be conducted without the employee’s informed consent.”
According to the CDC, such informed consent requires “disclosure, understanding, and free choice” and must allow an employee to act independently and make choices according to their values, goals, and preferences.
The CDC recommends that employers should take the following steps when developing or implementing a mandatory testing program:
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.
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.
Provide information about the testing program in the employee’s preferred language using nontechnical terms.
Additionally, the CDC reiterated to employers that they are required to provide certain disclosures about COVID-19 testing to employees during the consent process. These disclosures 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
These new CDC guidelines are beneficial for employers because they do not prohibit employers from implementing a mandatory COVID-19 testing program.
As employers, what do you do?
For employers who want to engage in mandatory testing, they should consider implementing the following procedures:
Create a testing policy, making sure the policy includes a consent process and all of the information that the CDC recommends employers relay to employees (as addressed above).
Train HR professionals to answer potential COVID related questions from employees.
Inform employees in advance that a declination to participate in testing will mean exclusion from work.
Consider offering incentives to employees, such as a small gift card.
For employees who refuse to undergo testing, HR should engage in interactive process and provide reasonable accommodations for those with disabilities and religious objections.
If an employee exercises their right not to undergo COVID-19 testing, the employer may be able to discipline the employee appropriately, but should provide advance notice to employees of the consequences of refusing to consent to COVID-19 testing and conferring with counsel to discuss best practices in making adverse employment decisions on this issue.
Consult with your attorney to make sure you are complying with any additional state or local requirements.
*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.
Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer. Richard regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters, particularly specializing in the defense of claims for breach of contract, wrongful termination, workplace harassment and retaliation, employment discrimination, wage and hour claims, and trade secret misappropriation.
Email: richard.liu@consultils.com | Phone: 626-344-8949
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