As mandatory screenings for private industry workers increases, some states launch free COVID-19 testing for state employees, while engaging medical laboratories to provide such testing
Amid the SARS-CoV-2 pandemic, welcoming employees back to work is not as simple as opening the company’s doors. Businesses based in some areas of the US and Canada are being required by state and provincial governments to conduct employee COVID-19 screenings. For clinical laboratories, the increase in mandatory screening programs could mean an expanding market for employee testing programs and opportunities for lab outreach programs.
But companies and medical laboratories may also face legal and regulatory risks as workplaces reopen and people return.
For example, how do clinical laboratory managers ensure their labs have the information they need to respond to new rules and regulations, and do employers have recourse should an employee receive a COVID-19 test report with an incorrect result?
Not COVID-19 Screening Can Lead to Fines, Imprisonment
In Ontario, under O. Reg. 364/20: Rules for Areas in Stage 3, an amendment to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, workplaces are required to screen employees and visitors for COVID-19 before they enter office buildings, the Society for Human Resource Management (SHRM) reported.
An Ontario Ministry of Health COVID-19 Screening Tool for Workplaces (Businesses and Organizations) instructs businesses on questions to ask of “workers” and “essential visitors” who are being screened before entering a workplace. They include:
- Is there existence of “new or worsening symptoms,” such as fever or chills, difficulty breathing, and cough?
- Has the employee travelled outside Canada in the past 14 days?
- Has the employee had close contact with other confirmed or “probable” COVID-19 cases?
A “probable” case is “a person with symptoms compatible with COVID-19 AND in whom laboratory diagnosis of COVID-19 is inconclusive,” according to a blog post by Justin P’ng, Employment and Labor Lawyer/Associate at international law firm Fasken in Toronto.
“Employers [in Ontario] must now specifically comply with the requirements of the Screening Tool and to implement such screening at any physical workplaces it operates in the province,” P’ng wrote. “Failure to comply can lead to significant penalties, including potentially fines and imprisonment under the legislation.”
It is possible the new requirements may ease Ontario workers’ minds about heading back to work during the pandemic. A Canadian workforce survey of employers and employees during July 2020 by PricewaterhouseCoopers (PwC) Canada found:
- Most employers (78%) expect a return to the workplace in 2020.
- Just one in five employees indicated they want to go back to the workplace full-time.
Michigan Makes Remote Work Mandatory
In the US, state rules enforced by the Michigan Occupational Safety and Health Administration (MIOSHA) require employers—for infection prevention reasons—to establish remote work programs for employees, unless it is not feasible for employees to work away from the workplace.
“The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely,” MIOSHA said.
Similar to the Ontario law, Michigan employers are also required to establish COVID-19 screenings. The MIOSHA rules direct employers to “conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.”
Michigan employers not in compliance with the state’s requirements for office work may be fined up to $7,000 per violation, a McDonald Hopkins Insights article noted.
Furthermore, anti-retaliation law in Michigan prohibits employers from terminating or “retaliating against” employees who oppose violation of the law or report COVID-19 “health violations,” the McDonald Hopkins Insights article added.
However, Michigan businesses may have protection under the COVID-19 Response and Reopening Liability Assurance Act. The law states a “person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm is immune from liability for a COVID-19 claim.”
The law defines a “person” as “an individual, partnership, corporation, association, governmental entity, or other legal entity, including, but not limited to, a school, a college or university, an institution of higher education, and a nonprofit charitable organization. Person includes an employee, agent, or independent contractor of the person, regardless of whether the individual is paid or an unpaid volunteer.”
New York Launches Free RT-PCR Tests for Transit Employees
“Quality COVID-19 testing is critical to helping our nation’s frontline workers do their jobs as safely as possible,” Wendi Mader, Executive Director of Employer Population Health at Quest Diagnostics, said in the news release.
New Special Report Available on COVID-19 Employee Testing Programs
As the SARS-CoV-2 pandemic progresses, laws, regulations, and rules pertaining to COVID-19 employee testing and screening will likely continue to develop—and they will vary by area and by test type—making them a challenge to interpret, track, and ensure compliance.
Thus, to help medical laboratory managers and human resources professionals receive the critical, relevant information they need prior to launching COVID-19 testing programs, the Dark Intelligence Group has published a special report, titled, “How to Develop a COVID-19 Employee Testing Program: Essential Guidance on Legal, Risk Management, Regulatory, and Compliance Issues for Clinical Laboratories and Employers.”
Included in the report:
- Ten regulatory essentials for launching a COVID-19 testing program
- Test eligibility
- Order requirements
- Contractual and liability issues
- Infection prevention and OSHA compliance
- Case studies
This information comes from attorneys at numerous law firms, including:
- McDonald Hopkins
- Greenberg Traurig
- Davis Wright Tremaine
- Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
- Foley and Lardner
- And others.
To access this timely and invaluable special report, click here, or go to: https://www.darkdaily.com/product/how-to-develop-a-covid-19-employee-testing-program-what-clinical-laboratories-need-to-know/ to download.
—Donna Marie Pocius