UpdatedQ: Are agencies required to establish a screening testing program for SARS-CoV-2, the virus that causes COVID-19?
A: No, though an agency may decide to establish its own screening testing program.
UpdatedQ: If an agency decides to establish a screening testing program, what steps may it take if a federal employee refuses to take a COVID-19 test required pursuant to that program?
A: Refusals to take a required 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.
An agency follows a different process if the employee seeks a reasonable accommodation. In that case, an agency should follow its ordinary 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. 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 a testing requirement, the agency may pursue disciplinary action.
UpdatedQ: Are agencies required to pay for the cost of testing employees pursuant to a screening testing program?
A: Yes, agencies that establish a screening testing program are required to pay for the cost of testing federal employees pursuant to that 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.
UpdatedQ: What types of test may an agency utilize for a screening 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. 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.
UpdatedQ: Can agencies utilize pooled specimen testing in a 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. 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.
UpdatedQ: Should agencies allow employees to undertake any 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 and the Federal Travel Regulation.
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.
UpdatedQ: Are federal employees and contractor employees participating in an agency testing program limited in their ability to work onsite in between 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 tests, although they must comply with all relevant safety protocols. 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 required test, 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 may result in that individual being denied entry to a federal building. Such circumstances do not relieve the contractor from meeting all contractual requirements.
Q: Can information on 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 at no cost to the employee. 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.
UpdatedQ: Should agencies discuss any testing plans with their employee unions?
A: Agencies should engage with employee unions at their earliest opportunity as they develop any 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.