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EMPLOYEE TESTING
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.”4
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.5 In 2020, SAMSHA issued a Notice of Proposed
Rulemaking 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.
Jackie Pirone is Program Leader for OraSure Technologies’ Substance Abuse Testing division. She has over 25 years’ experience in the drug testingindustry,workingatOraSureforthepast10yearsandforRoche Diagnostics Corporation for 15 years. Jackie is responsible for the global marketing direction, as well as the financial and market growth of the drugs of abuse and risk assessment product lines at OraSure.
REFERENCES
1. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated- guidance.html
2. https://www.samhsa.gov/data/sites/default/files/cbhsq-reports/ NSDUHNationalFindingsReport2018/NSDUHNationalFindingsReport2018.pdf
3. https://www.apa.org/monitor/2021/03/substance-use- pandemic#:~:text=According%20to%20the%20Centers%20for,the%20 onset%20of%20the%20pandemic
4. https://www.cdc.gov/coronavirus/2019-ncov/community/general- business-faq.html
5. https://www.samhsa.gov/find-help/national-helpline
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