On July 3, 2020, the CDC issued revised guidance regarding the testing of employees for non-healthcare related workplaces – SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces.  The CDC cautioned employers that the guidelines “are meant to supplement, not replace, any federal, state, local, territorial, or tribal health and safety laws, rules, and regulations with which workplaces must comply.”  Moreover, the CDC reminds employers that employers must use the guidelines in a “manner consistent with law and regulation, including laws protecting employee privacy and confidentiality. They should also be carried out consistent with Equal Employment Opportunity Commission guidance regarding permissible testing policies and procedures.”

Employers should review the California Department of Public Health’s memo to employers, Responding to COVID-19 in the Workplace, and ensure they are complying with all local requirements as well.

The CDC guidance discussing the following five testing strategies for non-healthcare workplaces:

1. Testing individuals with signs or symptoms consistent with COVID-19

Employees with COVID-19 symptoms should be separated from other people.  CDC recommends making the screening as private as possible to protect employee’s privacy.  Workers with COVID-19 symptoms should be referred to a healthcare provided for potential screening, and should remain home while waiting for test results.

2. Testing asymptomatic individuals with recent known or suspected exposure to SARS-CoV-2 to control transmission

The CDC recommends viral testing for all close contacts of person with COVID-19.  These individuals also need to be isolated.  The CDC notes that if an individual is tested early after contact with the virus, the test may not detect the virus.  Serial testing, tests done at different points in time, are more likely to detect the virus among close contacts of a COVID-19 case.

However, as the CDC notes, employers must be careful to follow additional regulations from state or local authorities regarding whether a negative test permits an employee to return to work.

The CDC also notes that a broad-based testing strategy may be appropriate for high-risk settings:

High-risk settings that have demonstrated potential for rapid and widespread dissemination of SARS-CoV-2 include:

  • High-density critical infrastructure workplaces
  • Workplaces where employees live in congregate settings (e.g., fishing vessels, offshore oil platforms, farmworker housing or wildland firefighter camps)
  • Workplaces with populations at risk for severe illness if they are infected, such as nursing homes

Employers are encouraged to consult with state, local, territorial, and tribal health departments to help inform decision-making about broad-based testing.

3. Testing asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification in special settings

The CDC sets forth when testing employees without symptoms may be appropriate “[w]hen communities experience moderate to substantial transmission…”  The CDC explains that workplace settings that may be appropriate for this type of testing include:

  • Workplaces where physical distancing is difficult and workers are in close contact (within 6 feet for 15 minutes or more) with co-workers or the public
  • Workplaces in remote settings where medical evaluation or treatment may be delayed
  • Workplaces where continuity of operations is a high priority (e.g., critical infrastructure sectors)
  • Workplaces providing congregate housing for employees (e.g. fishing vessels, offshore oil platforms, farmworker housing or wildland firefighter camps)

4. Testing to determine resolution of infection

The CDC sets forth different strategies for determining when an employee may return to work:  a symptom-based (i.e., time-since-illness-onset and time-since-recovery strategy), time based, or a test-based strategy. The CDC notes that “which strategy to use should be made in consultation with healthcare providers and public health professionals.”

Los Angeles County takes the position that “asymptomatic persons with laboratory confirmed COVID-19 are considered infectious 48 hours before the date of their first positive molecular test (sometimes called a PCR test) until 10 days after that initial positive test.”

Los Angeles County also requires a 14-day quarantine for employees who have had close contact with a confirmed case, and testing does not permit the employee to return to work sooner:

As a result, testing does not expedite return to work for close contacts. As mentioned above, a negative test in a close contact does not mean they are not infected. Close contacts may not leave quarantine until they have remained symptom free for 14 days.  Asymptomatic employees with a positive COVID-19 test may be released from isolation and return to work 10 days after the initial positive test, barring the development of symptoms.

Requiring A Doctor’s Note – CDC Changes Position

In prior guidance, the CDC set forth that employers should not require a doctor’s note for an employee to be able to return to work.  In this July 3 guidance, the CDC has changed this position, and sets forth the following:

Under the Americans with Disabilities Act, employers are permitted to require a healthcare provider’s note to verify that employees are healthy and able to return to work. However, as a practical matter, employers should be aware that healthcare provider offices and medical facilities may be extremely busy during periods of community transmission of SARS-CoV-2 and may not be able to provide such documentation in a timely manner. In such cases, employers should consider not requiring a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work.

Los Angeles County recommends that employers do not require a doctor’s note to permit an employee to return to work.  Los Angeles County has stated that in order “[t]o help us avoid overburdening the health system, you should not require a healthcare provider’s note either to justify the absence of an employee who is sick with respiratory disease or to permit the employee to return to work.”

5. Public health surveillance for SARS-CoV-2

Surveillance testing can be conducted to detect transmission hot spots or to understand disease trends in the workplace.  The CDC notes that surveillance testing should only be done if the “results have a reasonable likelihood of benefiting workers.”  Surveillance testing raises many privacy and confidentiality issues in the workplace, and employers should approach such testing very carefully and with guidance for health authorities and advice from counsel.