The Centers for Disease Control and Prevention (CDC) has been actively reviewing its COVID-19 guidance over the past few weeks and as expected, the new administration has issued significant new guidance and updates. These updates include direction on topics relevant to employers, including testing, quarantining, ad mask-wearing. First, new CDC guidance on testing advises employers to seek informed consent for any workplace-based COVID-19 testing program. Second, the CDC updated its quarantine recommendations to provide that fully vaccinated persons who meet certain criteria will no longer be required to quarantine following an exposure to someone with COVID-19. Third, the CDC published a study online showing that wearing two masks, one surgical mask and one cloth mask, can significantly reduce the spread of COVID-19.
New CDC Guidance on Informed Consent Prior to Testing
The new COVID-19 testing guidance explains that while COVID-19 testing, including mandatory testing, can be used as part of an employer’s COVID-19 prevention plan, “workplace-based testing should not be conducted without the employee’s informed consent.” According to the CDC, such informed consent requires disclosure, understanding, and free choice and must allow an employee to act independently and make choices according to their values, goals, and preferences. The CDC recommends that to fully support employee decisionmaking and consent, employers should take the following measures when developing or implementing a testing program:
- Ensure safeguards are in place to protect an employee’s privacy and confidentiality.
- Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.
- Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.
- Provide information about the testing program in the employee’s preferred language using nontechnical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.
- Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.
- Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.
Additionally, the CDC reiterated to employers that they are required to provide certain disclosures about COVID-19 testing to employees during the consent process. These disclosures include:
- The manufacturer and name of the test
- The test’s purpose
- The type of test
- How the test will be performed
- Known and potential risks of harm, discomforts, and benefits of the test
- What it means to have a positive or negative test result, including:
- Test reliability and limitations
- Public health guidance to isolate or quarantine at home, if applicable
Updated Quarantine Recommendations for Vaccinated Individuals
In its updated vaccine guidance, the CDC announced that vaccinated persons who are exposed to someone with suspected or confirmed COVID-19 are not required to quarantine if they meet the following three criteria:
- Are fully vaccinated (i.e., two or more weeks following receipt of the second dose in a two-dose series, or two or more weeks following receipt of one dose of a single-dose vaccine)
- Are within three months following receipt of the last dose in the series
- Have remained asymptomatic since the current COVID-19 exposure
The CDC recommended that a vaccinated individual who does not meet all three of these criteria should continue to follow current quarantine guidance after the exposure. The CDC also reiterated that even after receiving a full COVID-19 vaccine, individuals should continue to follow applicable guidance to protect themselves and others, “including wearing a mask, staying at least 6 feet away from others, avoiding crowds, avoiding poorly ventilated spaces, covering coughs and sneezes, washing hands often, following CDC travel guidance, and following any applicable workplace or school guidance, including guidance related to personal protective equipment use or [COVID-19] testing.”
Regardless of the CDC’s quarantine guidance, actual quarantine requirements largely are governed by state and local orders, so employers should be sure to consult those before changing their quarantine practices. Morgan Lewis is monitoring which jurisdictions have adopted this new recommendation.
New Data on Benefits of Double-Masking
The CDC recently released a study on how to ensure masks offer the best protection possible against coronavirus infections. The data demonstrated that wearing a cloth mask over a surgical mask, or a tightly fitted surgical mask, can reduce transmission of COVID-19 by up to 96.4% if both an infected individual and an uninfected individual wear masks in this manner.
The CDC explained that the most effective ways to obtain an appropriately tight fit with a single surgical mask are to: (1) knot the ear loops and tuck in the sides close to the face; or (2) wear a mask fitter, which can fit over a cloth mask or disposable mask, to minimize any air seeping in or out around the edges. The CDC stated that when fitters are secured over a surgical mask, they can potentially increase the wearer’s protection by more than 90% for aerosols in the size range considered to be the most important for transmitting COVID-19.
Finally, the CDC noted that until vaccine-induced population immunity is achieved, universal masking remains a highly effective means to slow the spread of COVID-19 when combined with other protective measures, such as physical distancing, avoiding crowds and poorly ventilated indoor spaces, and good hand hygiene.
Impact on Employers
Employers should consider how this new guidance impacts their current testing, quarantining, and mask-wearing protocols. The new testing guidance does not prohibit employers from implementing or continuing to maintain a mandatory COVID-19 testing program (which the EEOC deemed can be permissible in prior guidance). However, employers that engage in mandatory testing should double-check that their consent process includes all of the information that the CDC recommends employers relay to employees. If an employee exercises their right not to undergo COVID-19 testing, the employer may still be able to discipline the employee appropriately, but we recommend providing advance notice to employees of the consequences of refusing to consent to COVID-19 testing and conferring with counsel to discuss best practices in making adverse employment decisions on this issue.
Employers should decide what procedures their workplace will follow if an employee does not consent to testing, including reasonable accommodations for those with disabilities and religious objections, and they should be prepared to address employee questions regarding the COVID-19 testing program. As noted above, the CDC guidance notes that employers should inform employees in advance if a declination to participate in testing will mean exclusion from work. Any decided-upon procedure or alternative to testing should be applied routinely and all exceptions should be carefully considered and implemented consistently. As always, employers should verify they are complying with any state or local requirements for their workplace.
Employers also should contemplate whether the new CDC guidance stating that fully vaccinated individuals do not need to quarantine after an exposure alters the employer’s thinking regarding COVID-19 vaccines. For in-person workforces, this new guidance may present a significant reason to encourage these workers to get vaccinated, although the applicability of this guidance may vary by jurisdiction. Where the mandatory state and local requirements are silent on an issue or incorporate CDC guidance, then the best practice for employers is to comply with CDC guidance. Employers considering a mandatory vaccine should remain aware of many of the potential issues outlined in our prior vaccine lawflash before implementing a mandatory vaccine program.
Based, on the new CDC study on the benefits of double-masking, employers may consider providing both cloth and surgical masks to employees working in person and recommending or requiring that employees wear both masks as part of the employer’s COVID-19 safety protocols. Employers should also remain vigilant in monitoring compliance with their COVID-19 plans, as just because an employee double-masks or has been vaccinated does not mean the employee should stop taking other precautions.
Finally, employers should continue to monitor CDC and other public health guidance for new updates over the coming weeks and months. For example, the CDC is likely to issue new guidelines for vaccinated individuals in the near future, which may have an impact on recommended workplace policies for vaccinated employees. Moreover, the federal Occupational Safety and Health Administration is likely to issue a COVID-19 Emergency Temporary Standard on or before March 15, 2021. If issued as expected, many of the CDC’s current recommendations may become legal requirements at the federal level.