Workplace COVID-19 Testing Strategy Guidance

On July 3, 2020, the U.S. Facilities for Illness Management and Prevention (CDC) issued new steering entitled “SARS-CoV-2 Testing Technique: Concerns for Non-Healthcare Workplaces.” The brand new steering recommends incorporating COVID-19 testing in 5 situations: (1) testing people with COVID-19-related signs; (2) testing asymptomatic people with a current recognized or suspected publicity with a view to management transmission; (3) testing asymptomatic people with out a current recognized or suspected publicity for early identification in particular settings; (4) testing to find out when a person could discontinue dwelling isolation; and (5) testing for public well being surveillance.

(1) Testing Symptomatic People

Essentially the most related situation for many employers is testing workers decided to be exhibiting COVID-19-related signs, reminiscent of when signs are recognized throughout each day screening earlier than workers enter the office. The CDC steering means that workers with signs ought to be instantly separated from others and despatched dwelling or to a healthcare facility. If the worker checks optimistic, the worker mustn’t come to work and will isolate at dwelling till the worker satisfies the CDC’s standards for discontinuing dwelling isolation.

(2) Testing People Uncovered to the Virus

Along with testing symptomatic workers, the CDC steering envisions the usage of viral testing of these in shut contact with somebody who has COVID-19 (e.g., within the non-healthcare setting, different workers who had been inside 6 toes of an contaminated worker for 15 minutes or longer). On this context, the CDC notes that such testing is usually initiated by or performed in session with state or native public well being authorities. As well as, the CDC notes that “there could also be a delay between the time an individual is uncovered to the virus and the time that [the] virus will be detected by testing, [and] early testing after publicity at a single time level could miss many infections.”

(3) Testing People Who Haven’t Been Uncovered to the Virus

The CDC suggests {that a} third software for COVID-19 testing is to assist determine asymptomatic contaminated workers with none recognized or suspected publicity, significantly in workplaces the place social distancing is tough, distant settings the place medical analysis and therapy could also be delayed, sure vital infrastructure settings, and workplaces that present congregate housing to workers (reminiscent of fishing vessels, offshore oil platforms, and farm housing). In these situations, the CDC states that employers could think about completely different testing approaches, reminiscent of “preliminary testing of all employees earlier than coming into a office, periodic testing of employees at common intervals, and/or focused testing of latest employees or these getting back from a chronic absence.” The CDC recommends that employers “have a plan in place for a way they are going to modify operations based mostly on check outcomes and handle the next danger of false optimistic leads to a low prevalence inhabitants” previous to testing massive parts of a workforce.

(4) Testing for Discontinuing Isolation

The fourth software for testing is to find out when an worker could safely discontinue dwelling isolation (e.g., return to work). On this context, the CDC states that the willpower of whether or not to make use of a symptom-based, time-based, or test-based technique ought to be “made in session with healthcare suppliers and public well being professionals.” (Observe: Some state and native governments and public well being authorities particularly advise towards and even prohibit utilizing a test-based technique.) Notably, the CDC seems to melt its earlier admonition that employers mustn’t request a health care provider’s observe or check outcomes with a view to return an worker to work. Within the new steering, the CDC acknowledges that underneath the People with Disabilities Act (ADA), “employers are permitted to require a healthcare supplier’s observe to confirm that workers are wholesome and capable of return to work.” Nonetheless, the CDC continues to warn that such documentation could also be tough to amass from sure suppliers that “could not be capable to present such documentation in a well timed method.”

(5) Testing for Public Well being Surveillance Functions

The CDC states that COVID-19 testing additionally could also be used for public well being surveillance functions with a view to detect transmission sizzling spots or higher perceive illness tendencies in a office. Based on the CDC, “[t]hese targets are in line with employer-based occupational drugs surveillance packages[, which] could use testing to evaluate the burden of SARS-CoV-2 within the workforce … or consider the effectiveness of office an infection management packages.” Whereas the CDC notes that surveillance “ought to solely be undertaken if the outcomes have an affordable chance of benefiting employees,” this situation could also be untimely for consideration by employers absent additional steering from the U.S. Equal Employment Alternative Fee (EEOC). At current, the EEOC’s steering has accredited of COVID-19 testing solely within the context of figuring out if workers are protected to enter the office, and it’s unclear whether or not a “surveillance” testing program could be deemed lawful underneath the ADA.

Along with the dialogue of the above outlined situations, employers could discover the extra takeaways from the CDC steering noteworthy:

The CDC states that its really helpful testing methods ought to be carried out as a complement to different federal, state, and native well being and security legal guidelines relevant to the office and never as a substitute to different authorized necessities. The CDC additionally notes that any testing ought to be carried out in a fashion in line with relevant employment legal guidelines, together with with respect to worker privateness and confidentiality, and in accordance with printed steering from the EEOC.

The usage of COVID-19 testing “could also be included as a part of a complete method to lowering transmission in non-healthcare workplaces,” which incorporates different precautions, reminiscent of symptom screening and get in touch with tracing, to assist determine contaminated employees and take applicable motion “to sluggish and cease the unfold of the virus.”

The CDC states that workers present process testing ought to obtain “clear data” relating to (1) “the producer and title of the check, the kind of check, the aim of the check, the reliability of the check, any limitations related to the check, who pays for the check, and the way the check shall be carried out,” and (2) “tips on how to perceive what the outcomes imply, actions related to unfavourable or optimistic outcomes, who will obtain the outcomes, how the outcomes could also be used, and any penalties for declining to be examined.” The CDC additionally states that workers ought to obtain “affected person truth sheets” as a part of the check’s emergency use authorization from the U.S. Meals and Drug Administration (FDA).

The CDC notes that the U.S. Occupational Security and Well being Administration (OSHA) has issued interim steering discovering that COVID-19 is a recordable sickness and outlining when an employer could also be required to document an worker’s an infection on the OSHA Type 300 log and/or report an worker’s sickness.

The CDC steering reiterates that whereas viral checks could also be used to find out if an worker is presently contaminated with the virus, antibody checks shouldn’t be used as the only foundation to find out a present an infection and “shouldn’t be used at the moment to find out if a person is immune.” Equally, the EEOC just lately issued steering on antibody testing stating that underneath the ADA, employers could not use antibody checks as a part of their worker screening packages to find out if workers are protected to enter the office.

Key Takeaways

This new steering is a welcome improvement for employers searching for additional perception into how they might implement COVID-19 testing within the office. Whereas a useful overview, the steering is comparatively high-level and raises further authorized questions, reminiscent of whether or not and to what extent an employer could unilaterally implement a “surveillance” testing program within the office with out violating the ADA. Employers contemplating testing could need to evaluation these pointers rigorously and consider further necessities and steering from the related state and native governments and public well being authorities previous to implementing any large-scale testing program.