New CDC Guidance Requires Informed Consent for Workplace COVID-19 Testing

On January 21, 2021, the United States Center for Disease Control (“CDC”) issued new guidance for non-healthcare employers who conduct workplace COVID-19 testing. The CDC states that while testing for COVID-19 may be incorporated as part of a comprehensive approach to reducing transmission in non-healthcare workplaces, the testing should not be conducted without employees’ informed consent.

According to the CDC, “informed consent requires disclosure, understanding, and free choice, and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.” To fully support employee decision-making and consent, the CDC recommends employers take the following measures when developing a testing program:

  • 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.
  • 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.

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