Following is the latest guidance from the Biden administration on the Coronavirus testing aspect of its federal workplace policies.
Q: Are agencies required to establish a screening testing program for SARS-CoV-2, the virus that causes COVID-19?
A: Agencies must establish a screening testing program for SARS-CoV-2, the virus that causes COVID-19, to test Federal employees and contractor employees who work onsite and who are not fully vaccinated or who have declined to provide their vaccination information. Enrollment in this testing program is mandatory for those individuals and they must be tested at least once a week. Screening tests are intended to identify asymptomatic or presymptomatic infected individuals without known or suspected exposure to SARS-CoV-2. Both Federal employees and contractor employees who are fully vaccinated generally do not need to undergo screening testing.
Agencies may satisfy the requirement to establish a screening testing program in a variety of ways, including through in-house capabilities, a contract with one or more third party testing provider(s), an interagency agreement with another agency that has testing capabilities, or a multi-agency contract.
Q: What steps may an agency take if a Federal employee refuses to take a test?
A: Refusals to take a test may result in disciplinary measures. In addition to pursuing any disciplinary action, an agency may separately elect to bar the employee from the agency workplace for the safety of others pending resolution of any disciplinary or other action the agency may pursue. Any decision to bar the employee should occur in consultation with the agency’s onsite security authority, agency’s human resources office, and agency’s legal counsel. If the agency bars the employee from the workplace, and the nature of the employee’s work does not allow for it to be performed outside of the workplace, the employee must be placed on paid administrative leave until the question of disciplinary action is resolved. In pursuing an adverse action, the agency must also follow normal processes to provide the required notice to the employee.
However, if an employee raises a disability or religious issue as the reason for not being tested, an agency should follow its process to review and consider what, if any, reasonable accommodation should be offered. All agency personnel designated to receive requests for disability accommodations should also know how to handle requests consistent with other Federal employment nondiscrimination laws that may apply—for instance, with respect to religious accommodations. While the request is being resolved, the agency may bar the employee from official worksites. During that temporary period, the agency may direct the employee to work from home. If the employee’s duties cannot be performed via telework, the employee should be granted administrative leave.
If the employee’s request for an accommodation is denied, and the employee does not comply with the testing requirement, the agency may pursue disciplinary action.
Q: Are agencies required to pay for the cost of testing employees pursuant to their screening testing program?
A: Yes, agencies are required to pay for the cost of testing Federal employees pursuant to their screening testing program. Agencies are also responsible for paying the cost of testing should an employee visit another Federal agency if the employee’s agency has approved the visit in advance.
Q: What types of test may an agency utilize for its testing program?
A: Agencies may utilize any COVID-19 viral test, such as a PCR or antigen test, that has been authorized by the Food and Drug Administration to detect current infection. Any test that an agency utilizes must include a report that documents the test result and can be provided to the Federal employee or contractor employee who was tested, the agency, or both. If the results are provided to the Federal employee or contractor employee who was tested, the agency must establish a means for the Federal employee or contractor employee to provide those results to the appropriate agency staff for verification that required testing has been completed. If the results are provided directly to the employer, the report should be provided in compliance with regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended.
Q: Can agencies utilize pooled specimen testing in their testing program?
A: Yes, agencies can utilize pooled specimen testing, assuming the testing program utilizes any COVID-19 viral test that is used to detect current infection and has been authorized by the Food and Drug Administration, and provides results to the employee, the agency, or both. Pooled specimen testing combines the same type of specimen from several people and conducts one test on the combined specimen. If the pooled specimen test returns a positive result, each specimen in the pool must be retested individually.
Q: Does the testing requirement apply to not fully vaccinated Federal employees and contractor employees who are not reporting to their worksite (e.g., are on maximum telework or working remotely)?
A: No, only those Federal employees and contractor employees who are not fully vaccinated or decline to provide their vaccination status and who work onsite are required to undergo regular testing.
If an employee who is not fully vaccinated or declines to provide their vaccination status does not report to a worksite during a particular week (e.g., due to taking leave or teleworking), they do not need to be tested that week.
Q: Can an agency require a Federal employee who is not fully vaccinated or who has declined to provide their vaccination information to work remotely or telework, solely on the basis of their vaccination status and in lieu of entering that individual into a testing program?
A: No, an agency may not require a Federal employee who is not fully vaccinated to work from home based solely on their vaccination status.
Q: Does the testing requirement apply to Federal employees and onsite contractor employees who only work onsite on an infrequent basis?
A: Federal employees and contractor employees who are not fully vaccinated or who have declined to provide their vaccination information and who work onsite on an infrequent basis must be tested at least once in any week that they are working onsite.
Q: Should agencies allow employees to undertake required testing on duty time?
A: Yes. When a Federal employee is required to be tested pursuant to an agency’s testing program, the time the employee spends obtaining the test (including travel time) from a site preapproved by the agency is duty time; thus, there is no need for the employee to take administrative leave for such time during the employee’s basic tour of duty. An agency should only authorize an employee to spend time obtaining a test during the employee’s basic tour of duty hours and only for the amount of time necessary to obtain the test. In most circumstances, agencies should authorize employees to take no more than one hour to travel to the testing site, complete testing, and return to work. Agencies should require employees taking longer than one hour to document the reasons for the additional time. If, due to unforeseen circumstances, the employee is unable to obtain the test during basic tour of duty hours, the normal overtime hours of work rules apply.
Reasonable travel costs that are incurred as a result of obtaining the test from a site preapproved by the agency should be handled the same way as local travel or temporary duty (TDY) cost reimbursement is handled based on agency policy.
When an employee is not required to be tested but decides to obtain a COVID-19 test during basic tour of duty hours at the employee’s own initiative, the employee may request sick leave or other available paid time off for that situation.
Q: Are Federal employees and contractor employees participating in an agency testing program limited in their ability to work onsite in between weekly tests?
A: No, provided that they have met any applicable testing requirement and have not tested positive for COVID-19, Federal employees and contractor employees participating in an agency testing program are not limited in their ability to work onsite between weekly tests, although they must comply with all relevant safety protocols for not fully vaccinated individuals. However, if the employee or contractor employee has come into close contact with a person with COVID-19 during this time, they should follow CDC guidelines for testing and quarantine and not enter a worksite. Similarly, if they have symptoms consistent with COVID-19, they should not enter a worksite.
Agencies should develop a procedure for addressing circumstances in which employees or onsite contractor employees miss their regular testing requirement, which may include restricting the individual’s access to worksites if they have not obtained a test within a period of time specified by the agency.
An employee’s failure to comply with testing requirements can result in discipline, including an adverse action. An agency may separately elect to bar the employee from the agency workplace for the safety of others pending resolution of any disciplinary action. A contractor employee’s failure to comply with testing requirements can have consequences such as removal from the contract for the convenience of the Government.
Q: What steps should an agency consider in determining the frequency of required testing for employees and onsite contractor employees in specific workplaces?
A: Federal employees and contractor employees who work onsite and who are not fully vaccinated or who have declined to provide their vaccination information must be tested at least once a week. As set forth by the Centers for Disease Control and Prevention in its testing guidance for Federal workers, agencies should consider workplace characteristics, availability of testing, cost, and level of community transmission, among other factors in determining the frequency of required testing for Federal employees and onsite contractor employees. Agencies may have different testing frequency for employees with different job responsibilities or worksites. Generally, agencies should not need to test Federal employees and onsite contractor employees more than twice a week.
Q: Can information on employee and contractor employee test results be stored by an agency? How must information on test results be stored? How long must the information be stored for and who may have access to it?
A: Agencies have unique operational environments and may develop their own processes to document COVID-19 test results in compliance with all applicable laws and in accordance with their agency’s records management policies.
The Privacy Act statement for the testing requirements will refer to the Government-wide system of records (OPM/GOVT-10) for employee medical files (EMFs), which is governed by OPM regulations (5 C.F.R. part 293, subpart E). Under those rules, each agency must have written instructions for its EMF system with appropriate safeguards, and must retain short-term medical records under the applicable record schedule. Agencies with positions that are not subject to OPM’s regulations or that are not subject to OPM/GOVT-10 must give their employees an alternative Privacy Act statement. Any COVID-19 related certification or vaccination information must be maintained separately from the Official Personnel Folder. The Rehabilitation Act also requires that test results be kept confidential and limits who may have access to such information. Agencies are encouraged to take steps to promote privacy and IT security, while also providing the relevant information to agency officials who need to know in order to implement the safety protocols.
Agencies should consult, as appropriate, with their Agency Records Officer, Chief Information Officer, Chief Medical Officer, Senior Agency Official for Privacy, and agency legal counsel to determine appropriate information management protocols.
Q: Are agencies required to provide testing for work-related exposures?
A: Federal employees who have been exposed to persons with COVID-19 at work should receive diagnostic testing. Agencies that have in-house capabilities (either through an occupational health clinic or through the utilization of contract options) can provide testing at the worksite; if an agency does not provide testing at the worksite, it should determine a process for employee diagnostic testing.
Q: Can an employee get reimbursed for costs related to testing if required for official travel?
A: Yes, the cost of testing for current infection with SARS-CoV-2, required for official travel and not available through a Federal dispensary or not covered (or reimbursable) through travel insurance, can be claimed in a travel voucher as a Miscellaneous Expense under agency travel policies.
Q: Does the employee have a responsibility to pay for their own testing if the exposure is not work-related?
A: An agency is not responsible for providing testing to an individual as a result of a potential exposure that is not work-related. If the employee or contractor employee has come into close contact with a person with COVID-19 outside of work, they should follow CDC guidelines for testing and quarantine and not enter a worksite.
Q: If an employee tests positive for SARS-CoV-2 infection, is the agency required to record the COVID-19 case on the OSHA Injury and Illness Log?
A: Under OSHA’s recordkeeping requirements, if an employee tests positive for SARS-CoV-2 infection, the case must be recorded on the OSHA Illness and Injury Log if each of the following conditions are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment beyond first aid, days away from work). Employers should also follow state and county reporting requirements and comply with state and county contact tracing efforts.
Q: Should agencies discuss testing plans with their employee unions?
A: Since agencies need to act quickly due to the COVID-19 emergency and to protect the health and safety of onsite employees, contractor employees, and visitors, agencies should engage with employee unions at their earliest opportunity as they develop agency-specific testing plans and otherwise satisfy any applicable collective bargaining obligations under the law at the earliest opportunity, including on a post-implementation basis where appropriate.