Rob Beck, RN, COHC
Navigating regulatory requirements surrounding COVID-19 has became a full time job in many organizations. From tracking employee vaccination status to ensuring compliance with the ever changing landscape of requirements, COVID has been quite burdensome on employers and employees alike.
With the 6th Circuit Court of Appeals upholding OSHA's ETS, 1910.501, the landscape has just shifted once again. The Emergency Temporary Standard requires all employers with 100 or more employees to either:
1. Ensure their workforce is vaccinated from the COVID-19 virus
2. Ensure that the unvaccinated segment of their workforce is tested on a weekly basis for the presence of COVID-19.
While this seems relatively simple on the surface, it is proving quite tricky for employers to get all of their pieces in place. Whether facing supply shortages regarding testing supplies, understanding the CLIA requirements associated with administering testing, or simply struggling to understand where the man hours to support testing will come from, many employers are scratching their heads.
Work-Comp Management Services represents some of the largest names in industry and have partnered with them to establish and produce best practice guidelines for high volume testing. Through this experience, here are some important points for employers to consider when planning for testing:
a. First, you must understand your workforce
In order to efficiently prepare for a COVID testing program that complies with the ETS, employers should begin immediately collecting data regarding the vaccination status of their employees. This may prove difficult with certain employees who value their medical privacy or those working in union environments. Partnering with the employee/workforce leaders and providing education regarding the ETS requirements can assist employers through this process.
When needed, an employer should be prepared to enforce a policy requiring the employee to provide vaccination status. If this is not realistic for your organization, "hold-outs", or those that refuse to provide vaccination status, may be placed into the testing protocol, as the employer would not be able to verify the vaccination status of the employee, and hence defer to an unvaccinated status.
b. Secure your testing media
If you have not already, begin reaching out to your health related suppliers to inquire regarding availability and pricing of COVID testing supplies. Given the vastly broad scope of the ETS, testing supply availability may become scarce. The U.S. Government has indicated an impending massive order of testing supplies to be made available to the U.S. population, but it is not yet clear if these tests will satisfy any portion of the ETS, or if employers will be amongst those to whom tests are distributed.
c. Develop your written program
For those familiar with OSHA mandated programs, it stands to reason to develop a written program that your organization can follow. Take this opportunity to update your organizational prevention requirements, as well.
At a minimum, this written program should identify the organizations plan to comply with the ETS, including but not necessarily limited to:
Employee groups excluded from the testing requirements (i.e. vaccinated)
Employee groups included in the testing requirements (i.e. unvaccinated, status hold-outs)
Where testing shall be performed
The media required to perform the test (i.e. PCR, Rapid)
External or internal CLIA compliant group to administer testing services
Process for regulatory reporting
Process for employee notifications
Process for isolation/contact tracing for positive test results
Process for employee refusal to participate in program
d. Understand privacy laws
Whether hiring a contracted partner or utilizing internal medical resources to administer testing, it is important to understand that the results of testing are subject to privacy laws. Employees may refuse to sign a release of information that enables the tester to release the test results back to the employer. In these situations, an organization must determine the next steps in accordance with their written plan but should also review internal and external employment policy/laws prior to rendering decisions. The ETS is expected to challenge certain aspects of labor law in various ways, so employers would do well to mitigate their risk with a thorough review, and involving counsel where needed.
e. Who will do your testing and how will they do it?
When considering implementation, it is important to have a detailed plan regarding who will perform the testing, whether that testing format complies with state and federal regulations (i.e. state practice acts, CLIA regulations, etc.), and where the testing will occur. For smaller employers, it may be logical to refer employees to an off-site specimen collector. However, for medium to large size employers, sending employees off-site is neither practical nor cost effective.
This is where WCMS can help. We can provide your organization with comprehensive solutions that fulfill requirements from the point of care to regulatory reporting. Our teams are CLIA certified as collectors, mitigating your compliance risks. Service packages include full service, on-site staffing or session testing, which commits 2 hours per session to your organization. Multiple sessions can be bundled together in order to minimize impact to your organizational production. With a capacity of up to 200 employees per session, this is the most cost effective and highest bandwidth on-site testing platform.
WCMS stands ready to assist your organization with the development and implementation of these programs. Reach out to us today!