How to Keep Employees Safe in 2021

Precautions against the pandemic are step one in the workplace.

• By Jackie Pirone
• Jun 01, 2021

It’s 2021, and we are still in the throes of the COVID-19 pandemic. As more and more businesses reopen and some companies transition from remote to on-site workplaces, it’s natural for many people to feel concern about encountering the coronavirus at work. As such, COVID-19 safe practices for the workplace are probably here to stay, at least for the foreseeable future. Vaccines are helping, but the CDC continues to recommend that people “Take precautions in public like wearing a well-fitted mask and physical distancing.”

Reports also indicate that substance abuse, which increased significantly between 2018 and 2019, rose dramatically during the pandemic.

“According to the Centers for Disease Control and Prevention, as of June 2020, 13% of Americans reported starting or increasing substance use as a way of coping with stress or emotions related to COVID-19. Overdoses have also spiked since the onset of the pandemic.”

Workplace safety has always been a top priority for employers, but with concerns about COVID-19 on everyone’s minds, it is now more complicated than ever before. Testing, vaccinations and return-to-work/stay-at-work policies now go hand-in-hand with workplace drug and alcohol testing as essential components of an overall comprehensive, effective and legally defensible safety program. Understanding each of these components is of paramount importance.

Understanding COVID-19 testing

There are three primary types of COVID-19 tests—PCR (reverse transcription-polymerase)/NAAT (nucleic acid amplification tests), antigen and antibody.

PCR tests, which can be either lab-based or instant tests, detect genetic material that accompanies the virus. In other words, a positive PCR test means the person is currently infected by the virus or else that genetic material would not be present. A PCR test is considered the most reliable test, especially for early detection. Collection methods include a nasopharyngeal swab, nasal swab, oropharyngeal (throat) swab or oral fluid.

Antigen tests, which also indicate a current infection, can be conducted at a lab or with a POCT device.

Antigen tests detect an outer core protein. This makes it somewhat less reliable than PCR testing, especially for early detection. It is, by comparison, relatively inexpensive. Methods include a nasopharyngeal swab, nasal swab, oropharyngeal (throat) swab or oral fluid.

Antibody tests detect a prior infection rather than a current, live infection. Antibodies are detectable within one to three weeks after an infection. Again, this test can be lab-based or instant, but only blood and oral fluid testing are available. The EEOC had ruled that employers may not require antibody tests, but they are excellent for those who have had COVID-19 and want to know if they are still protected by natural immunity.

Nasopharyngeal is commonly considered the most intrusive and, by many people, painful collection method because the swab must be inserted straight back and deep into the nasal passage. Oral fluid is generally considered the most donor friendly and has proven to be an accurate specimen type for COVID-19 testing. An oral fluid specimen is easy to collect as donors spit into a tube rather than submit to a nasal or throat swab. It also allows for greater distance between the health care worker and the donor. Because of the ease of the collection process, oral fluid collections can be conducted at home or via a telehealth collection app.

COVID-19 Vaccines

There are currently three COVID-19 vaccines being used in the United States— Pfizer-BioNTech, Moderna and Johnson & Johnson Janssen, though others are in various stages of development. They are very similar to one another though there are a few key differences.

Perhaps the most significant difference from a practical perspective is that Pfizer and Moderna are double-dose vaccines whereas Johnson & Johnson is a single dose vaccine. Time will tell how effective these vaccines are at preventing people from becoming infected and spreading the virus to others, but preliminary indications are very positive. Another unanswered question is how long immunity will last and if booster shots will be needed to address variants of the coronavirus.

For those who are considering getting the vaccine and want to know which one is best, the CDC recommends getting whichever vaccine is available first in a donor’s area.

For employers, the number one question is whether they can require employees to get the COVID-19 vaccine. Because the EEOC has ruled that a vaccine is not a medical exam, the answer to the question is yes; however, exceptions may apply. For instance, an employer must consider requested exemptions by an employee because of the worker’s sincerely held religious beliefs protected under Title VII or conditions which make recipient of the vaccine dangerous or otherwise inappropriate consistent with the Americans with Disabilities Act.

At the time of publication, several state legislatures were considering bills that would restrict employers’ right to mandate vaccinations. The best advice here is to stay abreast of local legislative developments and consult with a labor attorney before implementing a policy that requires employees to be vaccinated.

How to Keep Staff Safe

Workplace COVID-safe practices include keeping all work areas sanitized throughout the day, requiring workers to wear a facial covering at all times while on company premises or while representing the company and practicing CDC-recommended social distancing.

As long as the CDC continues to consider COVID-19 to be a “direct threat” to the safety of others in the workplace, the EEOC allows inquiring about COVID-19 symptoms, temperature checks and COVID-19 testing of those who physically come to the workplace and are around others. Testing of employees who work from home or who work alone is not permitted. The EEOC has determined that employers may not conduct or require antibody testing for COVID-19.

According to the CDC:

“Employees who have symptoms when they arrive at work or become sick during the day should immediately be separated from other employees, customers and visitors, and sent home. Employees who develop symptoms outside of work should notify their supervisor and stay home.” The CDC also recommends that “sick employees follow CDC-recommended steps and not be allowed to return to work until they have met the criteria to discontinue home isolation.”

Additionally, the CDC warns that “Employers should not require sick employees to provide a COVID-19 test result or healthcare provider’s note to validate their illness, qualify for sick leave, or return to work.”

In addition to federal guidelines, virtually every state has issued its own “reopen” or “return-to-work” guidelines. Employers should plan to comply with these regulations in each of the states in which they have business operations.

Drug Testing in the COVID Era

Prior to the pandemic, the federal government reported that substance abuse in America had increased every year since 2015. In fact, from 2018 to 2019 the percentage of people 12 and older who admitted that they used illicit drugs in the past year increased from 53.2 million (19.4 percent of the population) to 57.2 million (20.8 percent). Since the start of the pandemic, experts believe substance abuse has increased at an even faster rate.

As such, workplace drug testing has never been more important, but it has also become complicated due to the ever-spreading legalization of marijuana, which in more recent years has included various legislative restrictions on drug testing. While these restrictive drug testing laws are relatively new, it is easy to imagine an increase in legal challenges to drug test results.

For this reason and others, employers should make legal defensibility the number one priority when administering a drug testing program. There are only three drug testing methods endorsed by the federal government: lab-based urine, oral fluid and soon, hair testing. For 30-plus years, urine testing was the only method permitted for federal government-mandated drug testing such as the drug and alcohol testing regulations of the U.S. Department of Transportation (DOT). On October 25, 2019, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued final guidelines for lab-based oral fluid drug testing. In 2020, SAMSHA issued a Notice of Proposed Rule-making for hair testing.

Those are the only testing methods with their accompanying procedures that employers can rely on to secure a high-level of legal defensibility in their drug testing programs. Lab-based oral fluid testing, in particular, is growing in popularity due to the fact that is the only drug testing method endorsed by the federal government that shows recent drug use (drugs become detectable in oral fluid within minutes after usage versus hours for urine testing and days for hair testing), which is a significant advantage in states that have legalized marijuana.

Complying with state laws that impact workplace drug testing in combination with relying on these federally endorsed drug testing methods (lab-based urine, hair and oral fluid) makes it possible for employers to continue to enjoy the significant benefits of drug testing while reducing possible exposure to legal liability. Conclusion The bottom line is employers have a responsibility to do everything possible to secure the safety of their workplaces and wellbeing of their employees. A comprehensive workplace safety program that includes COVID-safe practices and drug testing utilizing one or more of the three federally endorsed drug testing methods can help employers implement and maintain comprehensive, effective and legally defensible safety programs.

Conclusion

The bottom line is employers have a responsibility to do everything possible to secure the safety of their workplaces and wellbeing of their employees. A comprehensive workplace safety program that includes COVID-safe practices and drug testing utilizing one or more of the three federally endorsed drug testing methods can help employers implement and maintain comprehensive, effective and legally defensible safety programs.

This article originally appeared in the June 1, 2021 issue of Occupational Health & Safety.