The CDC has issued guidance on the elements of consent and recommended disclosures for employee decision-making on whether to participate in workplace-based COVID-19 testing. The new guidance expands on the disclosures outlined in "SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces," issued October 21, 2020.
Consent. Workplace-based testing should not be conducted without the employee’s informed consent, according to the CDC. Informed consent requires disclosure, understanding, and free choice. It is necessary so that employees will act independently and make choices according to their values, goals, and preferences.
Differences in position and authority, as well as employment status in non-standard working arrangements, such as temporary help, contract help, or part-time employment, can affect an employee’s ability to make free decisions. To give full support for employee decision-making and consent, the CDC recommends that employers take these measures when developing a testing program:
- Ensure safeguards are in place to protect employees’ privacy and confidentiality;
- Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as whether a positive test result or declining to participate in testing may mean exclusion from work;
- Explain any parts of the testing program that an employee would consider especially important when deciding whether to participate, including key reasons that may guide their decision;
- Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider getting employee input on the readability of the information. This tool can help create clear messages;
- Encourage supervisors and coworkers to avoid pressuring employees to participate in testing; and
- Encourage and answer questions during the consent process, which the CDC describes as 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.
Disclosures. The CDC noted that an employer’s testing program, including the implementation of a testing protocol to test employees, may be complex and technical, with certain aspects of the program more relevant than others to an employee’s decision on whether to accept an offered test. The earlier guidance, "SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces," identifies disclosures important for employees contemplating testing. Many of these disclosures are addressed in the U.S. Food and Drug Administration (FDA) emergency use authorization patient fact sheet for the test, which must be provided during the consent process. These 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; and
- What it means to have a positive or negative test result, including test reliability and limitations, and public health guidance to isolate or quarantine at home, if applicable.
Preparing for employee questions. The CDC also provides a detailed list of questions that employers should be prepared to answer for employees, which may include questions about:
- General considerations, such as why the employer is offering the test, how often employees will be tested and whether consent will be required each time, and what happens if the employee declines to test.
- Scheduling and payment, including who will do the scheduling, whether the employee will be paid for time and travel, available alternatives for employees who decline, who pays for the test and any follow-up care, and whether employees’ insurance providers will be billed.
- Testing site, such as who will administer the test and their qualifications, where the test will be performed, and whether temperature and symptom screening will be required prior to the test.
- Communication and interpretation, including when the results will be provided to employees and in what confidential manner, who will interpret the test and their qualifications, the test provider’s obligation to report a positive result to the public health authority, detailed information about a positive test result that runs the gambit from quarantine instructions and leave benefits to contact tracing, and what happens when the result is negative and the potential need for follow-up testing.
- Privacy concerns, such as what personal information the employee must provide and whether that demographic information will be retained and by whom and how long, confidentiality and security measures for personal information, which employer representative will have access to the result, whether the employer will retain the result and where and for how long, and how the result will be kept confidential and secure.
- Additional help and reporting injuries, including who to contact for additional information about the employer’s testing program, who to contact for employee rights information, who to contact for assistance such as for language translation or transportation to and from the testing site, and whether the employer will provide treatment for employee injuries sustained from the test procedure and during transport to or from the testing site.
Source: Written by Pamela Wolf, J.D.
From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.
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