New guidance from the CDC on Coronavirus testing in the federal workplace stresses that testing policies are to be “carried out in a manner consistent with existing laws and regulations, including laws protecting employee privacy and confidentiality.”
It says that “employees undergoing testing should receive clear information” on:
· The manufacturer and name of the test, the type of test, the purpose of the test, the performance specifications of the test, any limitations associated with the test, who will pay for the test, how the test will be performed, how and when they will receive test results; and
· How to understand what the results mean, actions associated with negative or positive results, the potential need for confirmatory testing, the difference between testing for workplace screening versus for medical diagnosis, who will receive the results, how the results may be used, and any consequences for declining to be tested.
It encourages agencies to “implement flexible, nonpunitive sick leave and supportive policies as part of a comprehensive approach to prevent and reduce transmission among employees.”
It adds: “Employers who mandate workplace testing for SARS-CoV-2 infection should discuss further with employees who do not consent to testing and consider providing alternatives as feasible and appropriate, such as reassignment to tasks that can be performed via telework.”
That appears to open the door for discipline if an employee refuses testing that the agency deems necessary and no accommodation can be reached. The guidance does not specify what actions agencies might take, but there could be precedent in earlier guidance regarding employees who must be on-site but refuse to wear required masks.
That guidance said that agencies can bar them from the workplace and put them on temporarily on paid “notice leave” pending an action such as an unpaid suspension.