WHCA COVID-19 Update #37

COVID-19 UPDATE #37

May 29, 2020

MANDATORY TESTING: DSHS ISSUES INITIAL GUIDANCE FOR ASSISTED LIVING FACILITIES

On May 28, 2020, the Department of Health (DOH) ordered all assisted living facilities with a memory care unit to complete universal testing of residents and staff by June 26. On the same day DSHS issued assisted living guidance on implementing the testing requirement for memory care residents and staff.

The assisted living guidance reiterates that testing of staff and residents in memory care is required unless the facility has undergone universal testing since April 1, 2020. All staff must be tested unless they provide written medical justification for declining testing. A staff member is defined as any employee, contractor, volunteer, or other personnel who provides health care, personal care, social, administrative, clerical, dietary, environmental, or any other kind of services in the facility.

Test kits and PPE necessary for administration of the tests will be delivered to facilities at no cost. There is no need to order testing or arrange a laboratory for processing; all of that has been done for you. Facilities will be responsible for the administration of the tests. Facilities will have the choice of sending the residents’ tests to their choice of contracted labs or to use one of two labs contracted with DOH. In order to be reimbursed for the staff testing costs, you must use one of the two DOH-contracted labs. Facilities will not be obligated to pay laboratories for this first round of base line testing.

The DSHS assisted living guidance also provides helpful contact information to DOH for assistance in finding help with administration of the tests; links to YouTube videos with instruction on specimen collection; guidance on employee refusal; physicians orders; and what to do with staff that test positive.

If you have questions please email Vicki McNealley.

MANDATORY TESTING: DSHS ISSUES INITIAL GUIDANCE FOR SKILLED NURSING FACILITIES

On May 28, 2020, the Department of Health (DOH) ordered every skilled nursing facility to complete universal testing of residents and staff by June 12, 2020. On the same day DSHS issued nursing home guidance on implementing the testing requirement for nursing home residents and staff.

The nursing home guidance reiterates that testing of staff and residents is required unless the facility has undergone universal testing since April 1, 2020. All staff must be tested unless they provide written medical justification for declining testing. A staff member is defined as any employee, contractor, volunteer, or other personnel who provides health care, personal care, social, administrative, clerical, dietary, environmental, or any other kind of services in the facility.

The DSHS nursing home guidance also provides helpful contact information to DOH for assistance in finding help with administration of the tests; links to YouTube videos with instruction on specimen collection; guidance on employee refusal; physicians orders; questions about reimbursement; what to do with staff that test positive; and information about an upcoming webinar on specimen collection.

If you have questions please email Elena Madrid.

TESTING: WHAT IF AN EMPLOYEE REFUSES TO BE TESTED?

In light of the May 28, 2020, order issued by the Washington State Secretary of Health mandating COVID-19 testing, we have received numerous questions regarding what an employer should do if an employee refuses to submit to a COVID-19 test.

We urge all employers to work with their staff and educate them about the need for testing in order to obtain 100% voluntary participation. However, employers likely can terminate the employment of an employee who refuses to participate in COVID-19 testing, provided the employee does do not have a compelling reason not to participate and the testing process is conducted consistent with the Order and applicable law. The Order clearly establishes that being tested is a state-established condition for working in a long term care facility. Any employee who refuses to participate, without a valid reason, will be unable to work. Provided there are no other circumstances to suggest the decision to terminate is discriminatory, retaliatory, or based on other improper motives, it is not likely a court would find such a termination to be illegal. Furthermore, t he federal Equal Employment Opportunity Commission has recently stated that an employer may lawfully require diagnostic testing for COVID-19 without violating the ADA. See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws – Technical Assistance Questions and Answers.” This guidance signals to employers that mandatory COVID-19 testing, when carried out in accordance with the requirements of applicable guidance, will likely not run afoul of the Americans with Disabilities Act (ADA).

Based on the Order and EEOC guidance related to COVID-19 testing and screening processes, we recommend the following:

Develop a testing process that is consistent with CDC recommendations and the Order, including incorporating adequate protections for employee privacy. Our law firm, Lane Powell, previously issued an alert on this topic, which may be helpful. Lane Powell may also be able to assist you with developing this process.
Provide employees a notice that includes the following:
State that the Order requires testing;
Explaining the testing process and how the test results will remain confidential and private;
Highlight that employees with a medical justification for not participating may be exempt;
Explain what will happen if an employee tests positive; and
Provide a point of contact person for employees with further questions and concerns.
If an employee refuses or expresses a concern with participating in testing, have an interactive discussion with that employee about their concerns. If the employee has a valid medical justification for not participating (e.g., the testing process could be harmful to their health), then you cannot and should not require testing, consistent with the Order. Assuming the employee is symptom free and has not been exposed to anyone with COVID-19, you can allow them to return to work as long as they use the proper PPE, and follow all safety protocols, in accordance with state and federal guidance.

As with most employment related issues, consultation with your HR experts and employment lawyers is always important. The foregoing should not be considered to be legal advice and you should consult your employment specialist prior to initiating any employee termination. If you have questions about this article please email Robin Dale.

WSHA WEBINAR: CORRECTED TIME

WSHA will host a webinar on June 8 from 12:00 – 1:00 p.m. regarding COVID-19 infection prevention strategies, innovative approaches, and lessons learned in behavioral health settings, as well as with patients with cognitive impairments. Webinar speakers will highlight best practices surrounding a variety of COVID-19 infection prevention topics, such as universal masking, managing accidents and exposure, testing, and working with challenging patient behaviors. Please bring questions and lessons learned from your facility as there will be time for discussion and Q&A. Register online here .

WHCA UPDATES FAQ DOCUMENTS

Since the COVID-19 virus initially affected our region, WHCA has been working with our member facilities to help them access resources and information on how to respond to this public health crisis. We have developed a list of the frequently asked questions for both assisted living and skilled nursing providers. We continue to update the documents with new information. You can access the Assisted Living FAQs and Skilled Nursing FAQs at any time.

ADDITIONAL RESOURCES

WHCA continues to post resources and information as it becomes available on our website . If you have questions or need additional information, please call the WHCA office at (800) 562-6170.