The guidance is particularly relevant for employers of essential workers, yet employers must consider the practical obstacles to implementing such strategies—namely, limited availability of tests and long turnaround times for the results.
We note at the outset that the strategies discussed below apply specifically to non-healthcare settings, as separate guidelines apply to healthcare settings. Moreover, the CDC is very clear that its proposed testing strategies are meant to supplement, not replace, other federal, state and local health and safety laws and regulations currently in effect. The CDC also makes clear that the tests it recommends are viral tests—the ones used to diagnose current infection—rather than antibody tests—those that test for past infection, which may or may not indicate whether a person is immune to the virus—given that the accuracy and practical utility of antibody tests have yet to be confirmed.
Testing Strategy Recommendations
The CDC’s July 3, 2020, guidance sets out strategies for incorporating viral testing in five scenarios:
- Testing individuals with COVID-19 signs or symptoms.
- Testing asymptomatic individuals with recent known or suspected exposure.
- Testing asymptomatic individuals without known or suspected exposure, for purposes of early identification in special settings.
- Testing to determine resolution of infection (e.g., discontinuation of home isolation).
- Testing for purposes of public health surveillance.
- Individuals with signs or symptoms. A viral test is not necessary for someone already exhibiting COVID-19 symptoms, though temperature screenings are a useful—if not legally required—tool that employers should strongly consider, especially in the critical infrastructure context. Symptomatic employees should isolate at home until they satisfy the pertinent criteria for returning to work, which we previously covered here (for essential employees) and here (for employees generally).
- Asymptomatic individuals with recent known or suspected exposure. To the extent employers are able to implement viral testing protocols, the CDC recommends testing for close contacts of COVID-19-positive individuals. Furthermore, the CDC encourages employers to work with public health officials to carry out contact tracing. In addition, the CDC has identified certain high-risk workplace settings where “risk-based testing”—that is, testing workers who worked in the same area or during the same shift as exposed workers—could be of particular value. High-risk settings include high-density critical infrastructure workplaces, workplaces where employees live in congregate settings and workplaces with populations at risk for severe illness, such as nursing homes.
- Asymptomatic individuals without known or suspected exposure, for purposes of early identification in special settings. Periodic testing for early identification is particularly useful in areas with moderate to substantial community transmission for workplaces where physical distancing is difficult, where medical evaluation or treatment may be delayed, where continuity of operations is a high priority (as in critical infrastructure sectors) and/or where congregate housing is provided. The CDC further provides several factors to be considered in determining the interval for periodic testing under such circumstances, including test availability, the rate or change in rate of people becoming infected in the surrounding community and the number of employees who tested positive during previous rounds of testing.
- Testing to determine resolution of infection. The CDC previously issued guidance on implementing a test-based strategy for determining whether an employee may return to work, as opposed to a symptom-based strategy, both of which we addressed here. The CDC notes that a test-based strategy remains an option; however, as a practical matter, requiring employees to produce a negative test before returning to work presents logistical challenges, as healthcare providers may be reticent to recommend multiple tests due to the limited availability of testing supplies and lab capacity. Therefore, a more logistically sound approach is for employers to use a symptom-based strategy, currently.
- Public health surveillance. Testing for public health surveillance is done to “detect transmission hot spots, or to better understand disease trends in the workplace.” The CDC has not provided much detail on how employers are to institute a surveillance-based strategy, and such an approach is likely premature until further guidance becomes available from the CDC and the EEOC.
Obstacles to Implementation
While the availability of viral tests varies based on geographic region, it is hardly an overgeneralization to say that widespread, readily available testing is not currently a practical reality. Not only are tests themselves not abundantly available; lab capacity to process test results is currently limited as well, and thus the turnaround time for test results is often too slow to yield clinically meaningful results. While the turnaround times vary widely, the problem is that without consistent, relatively quick turnaround, employers may be hard pressed to implement workplace viral testing protocols, much less consistently adhere to them.
Given the questionable practicality of implementing systematic testing protocols under the current circumstances, employers should continue to focus on implementing and maintaining safety measures that have proven effective at reducing the transmission of COVID-19, including social distancing, hand washing and wearing masks.
The COVID-19 Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.