CDC Interim Guidance Recommends Screening of Asymptomatic Employees for Select Workplaces

March 22, 2021
Kathryn M. Hindman

The CDC is now recommending that certain high risk, non-healthcare employers test asymptomatic employees for COVID-19. Specifically, in its March 17, 2021 Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces, the CDC recommends that these select workplaces consider testing asymptomatic employees with no known or suspected exposure for COVID-19:

Workplaces with an increased risk of introducing COVID-19 to the public (e.g., workplaces where workers are in close contact with the public, such as restaurants or salons, or workplaces in communities with moderate to substantial transmission);
Workplaces where there is a higher risk of transmission of COVID-19 (e.g., workplaces where physical distancing is difficult and workers might be in close contact, such as manufacturing or food processing plants, or workplaces that provide congregate housing for employees such as fishing vessels, offshore oil platforms, farmworker housing, or wildland firefighter camps); and
Workplaces where COVID-19 infections among employees will lead to greater negative impact, such as (a) remote settings where medical evaluation or treatment may be delayed, (b) critical infrastructure where continuity of operations is a high priority, and (c) workplaces with a high proportion of employees at increased risk for severe illness.

When should this testing occur in these select workplaces? The CDC describes several testing options, including initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, targeted testing of new workers or those returning from a prolonged absence (such as medical leave or furlough), or some combination of these approaches. The CDC also recommends that this screening be conducted at least weekly – likely because the incubation period for the virus continues to be approximately 14 days.

The Interim Guidance emphasizes that any testing, if used, is not a replacement for all other COVID-19 mitigation measures, many of which are currently mandated by Oregon OSHA — vaccinations, masks, social distancing, hand washing, cleaning and disinfecting, improved ventilation and HVAC, and infection control protocols.

Is such testing legal? The CDC Interim Guidance reminds us that according to the EEOC, mandatory testing of employees in the context of the COVID-19 pandemic is “job related and consistent with business necessity” and permissible under the Americans with Disabilities Act (ADA). The EEOC also notes that testing to determine if an employee has COVID-19 with an “accurate and reliable test” is permissible as a condition to enter the workplace because an employee with the virus will “pose a direct threat to the health of others.” EEOC notes that testing administered by employers that is consistent with current CDC guidance will meet the ADA’s business necessity standard. However, the CDC recommends that mandated workplace-based testing for COVID-19 should be not conducted without the employee’s informed consent (https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/workplace-testing-consent-elements-disclosures.html) about testing safety protocols, scheduling, interpretation of the test results, privacy considerations surrounding the testing, and who to contact with questions or concerns about testing (such as Human Resources or a union representative).

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