New COVID Testing Guidance Requiring Employers To Obtain Informed Consent

The Centers for Disease Control and Prevention (CDC) recently issued new guidance that will require employers to get informed consent from employees before testing them for COVID-19. In October, the CDC released guidance on employer testing, but it did not issue revised guidance containing the informed consent requirement until January 21. The new guidance states that “informed consent required disclosure, understanding, and free choice and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

Earlier guidance issued by the Equal Employment Opportunity Commission (EEOC) also directed employers to obtain informed consent before testing. The CDC recommends employers to provide the workers who will be tested with “complete and understandable information about how the employer’s testing program may impact employee’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.” 

According to the CDC, a few things for an employer to consider when developing a COVID testing program should be:

• Why is the employer offering the test to begin with?

• How frequently will employees be tested?

• How to effectively obtain employee consent.

• What to do if an employee declines to be tested.

The CDC also offers a list of key measures an employer should implement when developing a testing program to ensure that informed consent is obtained, including:

• 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.

• Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.

• Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.

• 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.