On July 3, 2020, July 20, 2020, August 24, 2020, September 18, 2020, October 21, 2020, and January 21, 2021, the CDC issued viral testing strategies for employers based on five categories of people.
- The first group are employees that are exhibiting symptoms of COVID-19. These employees should be separated from coworkers and customers and be referred to a healthcare provider for evaluation and potential testing. While waiting for the test results, the employee should not return to work. If the test is positive, the employee should isolate at home until discontinuation of isolation has been determined.
- The second category are those individuals who are asymptomatic but have had a recent known or suspected exposure. In this situation viral testing is recommended for all those who are in close contact with individuals that are known to have COVID-19, based on the fact that many asymptomatic people can have the virus. The CDC updated this guidance on October 21, 2020. Close contact is defined by the CDC as someone who was within six feet of an infected individual for a total of 15 minutes or more over a 24-hour period during the 48 hours before the infected individual exhibited symptoms or, if asymptomatic, 48 hours before the COVID-19 test was administered, even if the interactions that lead to a cumulative total of 15 minutes were brief and spread out over that time. If the asymptomatic employee is considered a critical infrastructure employee, they may be permitted to continue to work while following the CDC guidelines, which include prescreening, regular monitoring, wearing a mask, social distancing, as well as cleaning and disinfecting their work spaces.
- The third category includes individuals who are asymptomatic and have no known exposure, but the employer wants to use testing as an early identification measure, especially in areas where there are moderate to substantial community transmission. This may be even more important in cities when employees are in positions where social distancing is difficult, the area is remote, continuity of operations is a high priority, and/or you provide congregate housing such as with firefighters. How often this testing is done will depend on many factors, such as the availability of testing and the rate of spread in the community and within the workplace.
- The fourth category was updated by the CDC on July 20, 2020 and should only be considered when ending isolation for persons who previously tested positive and are severely immunocompromised. For all others, a test-based strategy is no longer recommended except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy as outlined in the CDC guidelines and within the KLC article outlining this subject.
- The fifth category is used to better understand the disease in the workplace, assess factors that place employees at risk for workplace acquisition of COVID-19, or evaluate the effectiveness of workplace infection control programs. This should only be done if the results will likely benefit the workers. At this point, based on the lack of guidance in this area, employers should delay this testing until further guidance has been issued.
- The CDC specifically mentions that critical infrastructure workers, healthcare workers, and first responders be tested according to the employer’s guidelines. The CDC also recommends that even if the employee tests negative, they should wear a mask when they cannot physically distance during the workday, wash hands frequently and monitor themselves for any possible symptoms.
In all of these situations, care should be taken when informing the employees of a possible exposure while maintaining confidentiality of the individual that has COVID-19, as required by the ADA
and EEOC. The CDC also 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.” Employees undergoing testing should receive disclosures regarding:
- 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
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 (FDA).
This guidance from the CDC also reiterates that employers may use viral testing in the workplace, but based on recent EEOC Guidance, employers may not use antibody testing to determine if employees are safe to enter the workplace. For more information, see the EEOC COVID-19 Technical Assistance Questions and Answers.
Cities should implement temporary policies for COVID-19 testing, prescreening and leave, if providing. In the absence of this leave, employers should work with employees through the use of paid or unpaid leaves within their particular personnel policy to be certain that employees have the time off that they need to recover and keep their coworkers and the community safe from exposure.
For more information on the CDC’s guidance for testing review, please refer to the CDC website and discuss with your city attorney and the local health department. If you have any questions about this or any other personnel-related matter, please contact Personnel Services Manager Andrea Shindlebower Main or Personnel Services Attorney Justin Hocking.