The US Centers for Disease Control and Prevention, (CDC) has issued recommendations aimed at developing testing plans for employers in non-healthcare workplaces. The CDC has also released guidance for healthcare personnel. Both guidance documents are designed to assist employers in creating plans for preparedness, response and control of COVID-19 in the workplace. The following overview is for non-healthcare workers, healthcare workers are subject to slightly stricter requirements. It is important to remember that federal, state and local guidelines still apply and must be considered when creating and implementing a strategy that works best for your business to slow and stop the spread of the virus.
There are five categories of testing strategies.
Testing individuals with signs or symptoms consistent with COVID-19. Employers may conduct daily health screenings to identify employees who show signs or symptoms of the virus. The screenings may be done in person or virtually. Remember that if screenings results are documented, the business must follow OSHA and EEOC requirements for collecting and maintaining those records. Under OSHA, records must be maintained for 30 years after the end of employment. Not documenting the screenings, thus eliminating the retention period may be more realistic for many businesses. If an employee shows symptoms, they should be sent home immediately and or to a screening facility. It is recommended that a symptomatic employee be kept separated from other employees and maintain physical separation until test results show they are not positive for COVID-19.
The CDC recommends that the overall approach to preventing the spread of the virus should include flexible sick and leave polices. Many small businesses qualify for tax credits under The Families First Coronavirus Response Act (FFCRA) which provides paid leave for specific COVID-19 absences. Employees who test positive, should follow pre-determined plans for returning to work. Plans often fall into symptom-based, time-based or a test-based strategy.
Testing asymptomatic individuals with recent known or suspected exposure to COVID-19 to control transmission. Employees who have had close contact with a known or suspected person exposed to the virus should be placed into quarantine and tested. It’s important to identify known contacts and remember that there may be a delay in the time an individual is exposed and when the virus is detectable. Multiple tests may be necessary to avoid receiving a negative test prior to incubation of the virus.
The business type and proximity of employees to each other may also help determine the extent to which proximity-based testing takes place. Some businesses may need to test an entire shift based on proximity to an effected person. Others may not have the need to test on such a broad level. When determining the possible exposure and effected employees, remember that the Americans with Disabilities Act (ADA) will typically apply, which requires that employers keep certain information, including the identity of the effected employee confidential.
Testing asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification in special settings Periodic testing may be appropriate if a business is located in a community with a high transmission rate and the business or employees fall into one of the following categories:
- If employees are in close contact with one another for prolonged amounts of time (15 minutes or more).
- The workplace is remote and lacks immediate medical treatment causing a delay in testing.
- Continuity of operations is a high priority (critical infrastructure).
- Employees share congregated housing.
Approaches may include initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, and/or targeted testing of new workers or those returning from a prolonged absence. Several factors may be helpful in determining the interval for periodic testing including:
- The availability of testing.
- The latency between exposure and development of a positive COVID-19 viral test.
- Businesses that fall into one of the workplace categories described above.
- The rate or change in rate of people getting infected in the surrounding community.
- How many employees tested positive during previous rounds of testing.
- Relevant experience with workplace outbreaks.
A proper plan will have procedures in place for modified operations in the event of large population testing.
Testing to determine resolution of infection (e.g., discontinuation of home isolation). When determining the appropriate time for an employee to return to work, an employer may use symptom-based, time-based or a test-based strategy. From a risk standpoint, employers may want to have a note from a medical provider (allowed under the ADA) to certify that an employee is healthy and able to return to work. However, it’s also important to realize that this may cause a delay in an individual returning to work because of high demand being placed on the medical community.
Public health surveillance for COVID-19. Testing is considered to be surveillance when conducted to detect transmission hot spots, or to better understand disease trends in a workplace. These goals are consistent with employer-based occupational medicine surveillance programs. Occupational medicine surveillance programs may use testing to assess the burden of COVID-19 in the workforce, assess factors that place employees at risk for workplace acquisition of COVID-19, or evaluate the effectiveness of workplace infection control programs. Surveillance should only be undertaken if the results have a reasonable likelihood of benefiting workers.
As we have previously discussed any workplace screening or testing regime is likely to create records that are subject to the ADA and OSHA. Employers should carefully evaluate potential compliance obligations when establishing their policies.
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