The Centers for Disease Control and Prevention (CDC) has issued guidance on the elements of consent and disclosures necessary to support employee decision-making when employers incorporate workplace COVID-19 testing.
Differences in position and authority (such as workplace hierarchies), as well as employment status in nonstandard working arrangements (e.g., temporary help, contract help or part-time employment) can affect an employee’s ability to make free decisions. This guidance suggests measures employers can take when developing a testing program.
To fully support employee decision-making and consent, these measures should include:
- Safeguarding employees’ privacy and confidentiality;
- Providing information that is complete and understandable on how the employer’s testing program may impact employees’ lives;
- Explaining any parts of the testing program an employee would consider important when deciding to participate;
- Providing information about the testing program in the employee’s preferred language using nontechnical terms;
- Encouraging supervisors and co-workers to avoid pressuring employees to participate in the testing; and
- Encouraging and answering questions during the consent process.
Employers should follow these measures to create a supportive environment when employees need to make decisions about workplace-based testing.
Disclosures for Workplace Testing
An employer’s testing program (including the implementation of a testing protocol to test employees) may be complex and technical. Certain aspects of the testing program may be more relevant than others to an employee’s decision whether to accept an offered test. The CDC’s 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.
Those disclosures include:
- The manufacturer and name of the test;
- The test’s purpose;
- The type of the 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, public health guidance to isolate or quarantine at home, including:
- Test reliability and limitations; and
- Public health guidance to isolate or quarantine at home, if applicable.
Employers should be prepared to discuss the following topics: