Donovan: Cal/OSHA Guidance on Return-to-Work Testing

Thursday, February 3, 2022 | 0

Question: I have an employee who tested positive for COVID-19. She has been home from work for five days and would like to take another COVID-19 test to return to work. If the employee uses an over-the-counter COVID-19 test, do I have to watch the employee administer the test?

Amy Donovan

Answer: The California Department of Public Health (CDPH) guidance for isolation and quarantine periods allow an employee who tests positive for COVID-19 or who has been exposed to someone with COVID-19 to return to the workplace after five days if symptoms are not present and the employee’s COVID-19 test, taken on day 5, is negative.

While the CDPH guidance states that an antigen test is preferred, it otherwise does not provide guidance on what type of test qualifies for return-to-work testing. In the absence of that specificity, an employer must look to the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS), which was updated on Jan. 14.

Under the ETS, a “COVID-19 test” is defined as a test for SARS-CoV-2 that is:

• Cleared, approved or authorized, including in an emergency use authorization (EUA) by the United States Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test).
• Administered in accordance with the authorized instructions.
• Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed either individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests and those where specimen collection and processing is either done or observed by an employer.

On Jan. 24, Cal/OSHA released updated frequently asked questions related to the ETS. That guidance stated with regard to over-the-counter testing, “Another option to meet the requirement that a test is not 'self-read' is to use an OTC test that features digital reporting of date and time-stamped results. These tests do not require observation by an employer or telehealth proctor.”

So, under the Cal/OSHA guidance, the test must be monitored in one of the ways outlined above. While the CDPH guidance is silent on this issue, we are advised that employers are obligated to follow the Cal/OSHA standard regarding which COVID-19 tests are acceptable for return-to-work testing.

For more information, Cal/OSHA is hosting webinars on the recent update to the ETS.

Amy Donovan is vice president of legislative and regulatory affairs for Keenan and Associates' public agency property and casualty practice in Torrance, California. This entry is republished from Keenan's blog.