Creating the Right COVID-19 Workplace Testing Policy
The problems with testing and the legal obstacles you must navigate to implement it.
Before You Begin: Why COVID-19 Testing May Not Be Such a Great Idea
Picture an airport security check line where each passenger goes through a screening station one at a time before being allowed to proceed. Workplace COVID-19 testing does not work like this. Current technology does not allow for rapid and reliable on-site screening. Instead, samples must be sent to an offsite lab that then has to run them through complex instruments to isolate the subject’s RNA for testing. All of this takes about 48 hours; and as is often the case these days, if the testing lab is backed up, testing can take up to a week. Result: By the time the results come back, an employee who tested negative might have contracted the virus.
If you are still determined to make your employees undergo COVID-19 testing, continue on and we’ll show you how to maneuver around the privacy and other legal obstacles you face in implementing a program.
The Legal Limits of COVID-19 Testing
As most HR directors clearly understand, mandatory testing is highly problematic, especially when it’s performed on all employees regardless of symptoms. But because we are in a pandemic, employers have unusual leeway. Privacy and human rights commissions across the country have grudgingly acknowledged that mandatory workplace testing may be a legitimate health and safety measure as long as it’s carried out in a way to minimize privacy invasion and the risks of discrimination—human rights agencies have let it be known that they consider COVID-19 or the perception of having it to be a “disability” protected from discrimination and requiring accommodations to the point of undue hardship.
How to Create a COVID-19 Testing Policy
The key to compliance is to implement a testing policy that includes the appropriate safeguards and limitations. Use this model COVID-19 Testing Policy and include the following 10 elements:
1. Policy Statement
According to the regulators, mandatory testing is okay as part of a more comprehensive program to prevent COVID-19 infection in the workplace, provided that the information provided by testing is essential to accomplishing the objectives of that program and there are no less privacy invasive ways to get the information.
The point: Your organization must make a determination about whether testing meets these criteria and spell this out in the Policy (Policy, Sec. 1).
2. Policy Purpose
State that the purpose of the Policy is to ensure that testing is done fairly, consistently, reasonably, transparently in a way that is minimally privacy-invasive and compliant with applicable laws and current public health guidelines (Policy, Sec. 2).
3. Test Samples
Regulators want transparency and the one thing you need to be transparent about is how samples are collected for COVID-19 testing. And it’s not a pretty picture. Serological tests that detect the antibodies the body produces to fight the virus are blood-based; but they’re highly inaccurate, so much so that they’re not accepted for workplace screening purposes in the U.S. (Canadian regulators have yet to weigh in on the acceptability of antibody tests). More accurate and commonly used are molecular RT-PCR (reverse transcription polymerase chain reaction) tests that detect RNA from the virus from throat tissue samples collected at the back of the throat using long swabs stuck up the patient’s nose. You probably want to explain this to your employees before they experience it for themselves (Policy, Sec. 5).
4. Reimbursement of Sample Collection Time
In addition to discomfort, being tested for COVID-19 inflicts inconvenience. Although there are a few home-collection kits on the market, those nasty throat swab samples are usually collected by a trained health professional. If you have the negotiating leverage, you may be able to get the testing lab to station a collection agent to your workplace; otherwise, employees will have to travel to an offsite lab or collection site. Although there is no OHS or public health law requiring it, you may have to treat this as compensable time under the terms of your employment contracts, collective agreements, or health benefits plan. Or you may want to do it voluntarily to ensure employees get themselves tested (Policy, Sec. 5).
5. When Testing Is Done—the Asymptomatic
The next big thing you need to deal with is the timing of testing. The goal is to get employees tested before they show up for work, but you need to factor the delay between sample collection and test reporting into the equation. New employees should be tested at least 48 hours before reporting for their first day of work; current employees should be tested on a baseline date that you can use to schedule subsequent retesting. The greater the exposure risk, the more frequent retesting should be (Policy, Sec. 6).
6. When Testing Is Done—the Symptomatic & Recently Exposed
In addition to baseline and regular retesting, employees should be tested immediately if they exhibit COVID-19 symptoms or they are found to have had recent exposure to somebody who tested positive or was otherwise confirmed as having the virus. Those employees should immediately leave the workplace and not be permitted to return until their test comes back negative or their symptoms resolve (Policy, Sec. 6).
7. What Happens if the Employee Tests Positive
Although COVID-19 tests aren’t 100% accurate, you can and should treat a positive test as a confirmed diagnosis and require the employee to go into immediate self-isolation for as long as the public health guidelines dictate based on the situation and symptoms. However, according to the Ontario Human Rights Commission, “organizations have a duty to accommodate people who are negatively impacted by COVID-19 test results, unless it would amount to undue hardship based on cost or health and safety.” The Commission says employers should “be flexible” and consider “alternative ways a person might continue to safely work.” Such accommodations could include allowing the employee to telecommute or work in physical isolation from others at the site (Policy, Sec. 7).
8. Privacy Protections
Include the following privacy protections in your testing Policy:
- A promise to limit testing to the question of whether employees have COVID-19 and not seek any other medical information about them;
- An explanation of how you will disclose positive test results to local health agencies and the recently exposed;
- A commitment to protect and maintain the confidentiality of test records in accordance with your organization’s privacy and personal health information policies
(Policy, Sec. 8).
Make it clear that testing positive COVID-19 is not grounds for termination or discipline but that unreasonable refusal to cooperate and undergo required testing is (Policy, Sec. 9).