On July 3, 2020 and again on July 20, 2020, 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 co-workers 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. Close contact is defined by the CDC as “someone who was within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to specimen collection) until the time the patient is isolated.” 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 pre-screening, 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 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 final 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 hold off on this testing until further guidance has been issued.
In all of these situations, care should be taken when informing the employees of a possible exposure and while maintaining confidentiality of the individual that has COVID-19 as required by the ADA
and EEOC. The CDC states that employees undergoing testing should receive “clear information” regarding “the manufacturer and name of the test, the type of test, the purpose of the test, the reliability of the test, any limitations associated with the test, who will pay for the test, and how the test will be performed,” and “how to understand what the results mean, actions associated with negative or positive results, who will receive the results, how the results may be used, and any consequences for declining to be tested.” 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.
Employers should also be aware of the availability of Emergency Paid Sick Leave as provided in the Families First Coronavirus Response Act. Cities should implement temporary policies for COVID-19 testing, prescreening and leave. 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 Courtney Risk Straw.