Informed Consent for Testing
New guidance issued by the CDC last month states that employers should not conduct COVID-19 testing without the employee’s informed consent. This new guidance does not state that employers cannot continue to require testing as a condition of entering the workplace.
Rather, the CDC indicates that when developing SARS-CoV-2 testing programs, employers should work to ensure “employee informed consent and a supportive environment.”
In other words, employees should be able to make their own decisions on whether to be tested based on disclosure of all relevant facts, one of which may be that if the employee chooses not to be tested, the employee may not enter the workplace.
The CDC’s website lists a number of measures that employers should implement, including:
• putting in place safeguards to protect employees’ privacy and confidentiality
• providing complete and understandable (in simple non-technical terms and in the employee’s preferred language) information about how the testing program might impact employees’ lives (for example, a positive test result or a refusal to be tested could mean being excluded from work)
• encouraging supervisors and co-workers to avoid pressuring employees to participate in testing
• encouraging employees to ask questions
A list of disclosures employers should be prepared to provide can be found on the CDC’s website. Some of these apply only to those employers who are themselves testing employees, but many apply even to employers who have employees tested off-site by their own healthcare providers.
OSHA’S New Guidance
Last week, OSHA issued revised guidance for workplace settings outside of healthcare. New recommendations include:
• assigning a workplace coordinator who is responsible for COVID-19 issues on the employer’s behalf
• including workers in conducting a thorough hazard assessment that identifies where and how workers might be exposed to COVID-19 at work
• providing and requiring all workers (subject to reasonable accommodation) to wear face coverings (unless their task requires respirators), which should be made of at least two layers of a tightly woven breathable fabric, such as cotton
• communicating safety workplace policies clearly and frequently in plain language that workers understand
• educating employees about how COVID-19 is spread, the importance of physical distancing, use of face coverings, and hand hygiene; the employer’s COVID-19 prevention program; and a means of tracking which workers have been informed and when
• asking workers to report to the employer COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace, emphasizing that workers will not be punished in any way for doing so
Additional requirements can be found on OSHA’s website.
Whether you are an employee or an employer, please feel free to contact us if you have any questions about workplace COVID-19 safety or any other employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm. The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Annie Spratt on Unsplash.jpg
