Asking COVID Questions
As the Delta variant heats up, providers are wondering what they can and can’t ask employees and patients about their vaccination status and similar topics. Accrediting expert Sandra Canally, RN and legal expert Brittany Hinton provide some answers.
- By David Kopf
- Aug 19, 2021
Sandra Canally, RN, founder and CEO of The Compliance Team Inc.
As the delta variant of COVID-19 makes a greater and greater impact on American healthcare, post-acute care and HME providers specifically are feeling its presence.
And they have a lot of questions about how the ongoing (and re-intensifying) pandemic might affect how they reimplement pandemic policies and procedures.
Case in point: accrediting organization The Compliance Team, Inc. recently hosted a webinar that resulted in several questions from providers specifically about the types of questions they can ask employees and patients when it comes to vaccination status and similar circumstances.
Sandra Canally, RN, founder and CEO of The Compliance Team, generously offered to share her expertise and information to answer those questions.
Canally sits on HMEB’s Editorial Advisory Board, and her fellow board member, Jeffrey Baird, Esq., who is chairman of the Health Care Group at Brown & Fortunato, offered to have an employment expert from his firm also provide answers.
So, joining Canally is Brittany Hinton, an employment lawyer who works with Jeff Baird at Brown & Fortunato. If you’re wondering about what kinds of COVID questions you can ask, Canally and Hinton offer some solid answers, both from an accreditor’s perspective and an employment attorney’s perspective, to the webinar questions:
Q: We are noticing that of the patients that are getting COVID now, most have had the vaccine. Can a business ask customers if they have been vaccinated, or does this question impose on customers’ privacy?
Canally: As an accreditor, we look at which provider is in the circle of care, and thus “Need to know”.
If an HME provider is delivering products/services to this patient during a public health emergency in the geography that they preside, screening for the infectious disease is directly related to risk to their employees as well as preventing the spread of infection to other patients.
Hinton: Federal law does not restrict businesses from asking customers about COVID-19 vaccination status. However, state and local governments have passed laws that do prohibit this question. For example, in Florida, Governor Ron DeSantis issued Executive Order Number 21-81banning businesses from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination.” Employers should check their local and state-specific laws relating to this subject.
In addition, organizations that meet the definition of a covered entity under the Health Insurance Portability and Accountability Act (“HIPAA”) must comply with the Rules’ requirements to protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information.
Q: Can employers ask their employees if they are vaccinated?
Canally: In evaluating a DME/HME for accreditation, we would look at the company’s written policy regarding vaccination status for their patients and employees/contractors. It is our policy to do so as well as recommend anyone providing direct services to customers in the field be vaccinated.
All employees at risk for exposure with direct patient contact for a length of time should be vaccinated, or at a minimum, wear appropriate personal protective equipment. Basically, the higher the risk for employees and patients, the greater the need for vaccination.
That said, there are people that have allergies, religious beliefs that prohibit them from getting vaccinated. It also could be due to a lack of understanding regarding the vaccine causing hesitancy. I would have those individuals go to their primary care provider to get better educated from a medical professional or a note for their employer stating reasons for declination.
Just like we have employees sign a declination for the Hep B shot when exposed to bloodborne pathogens, I would use that same letter of declination to decline the COVID vaccine.
As an employer, you have offered and will cover the cost, and you have documentation that it was declined. All of this employee information is of course kept confidential and is handled like other PHI that you may have on your employees.
Hinton: Employers may ask if their employees are vaccinated. However, the Americans with Disabilities Act (the “ADA”) requires employers to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination.
This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the law does not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidentially and stored separately from employees’ personnel files pursuant to the ADA.
Q: Can we discuss this more on how to determine if this applies to our specific case? For example, a DME provider has 25 employees and a retail place. Half of the employees are vaccinated. We ask if customers coming into the retail are symptomatic, but we are not doing temp checks. How should we proceed?
Canally: First and foremost, do a risk assessment of your business, looking at employees, patients/customers and how it impacts the business.
- What type of provider are you?
- What types of services do you provide?
- What type of environment – retail, home delivery, mail order, etc.
Now, let’s talk about the best methods to maintain infection control.
For high-risk DMEPOS activities such as doing homecare performed by vaccinated employees, try to do the following:
- Perform screening prior to delivery
- Use good hand hygiene
- Use PPE (Gloves) if touching equipment
- Use a mask if entering patient’s home and coming close to patient’s air space
- Bag and tag equipment for delivery as well as pick up
- Ensure you use disinfectant
- Utilize telehealth measures in place of delivery if appropriate
- To keep number of deliveries down, evaluate your ability to give additional supplies, portables etc.
For low-risk DMEPOS activities that are handled by non-vaccinated people, try to do the following:
- No direct patient contact
- Products are shipped
- Do tele-instructing
- e.g. via Facetime, check with manufacturer for video/web instructions
If employees have been working virtual and are returning to retail or homecare duties them prior to return on the following:
- Has the individual traveled from a high-risk area within the past 14 days?
- Has the individual had close contact with a person with probable or confirmed COVID-19 in the past14 days?
- Has the individual ever tested positive for COVID-19?
- Did the individual self-isolate or were they put on isolation status by a healthcare provider?
- Did the individual experience any symptoms of COVID-19?
- Have seven days passed since their first positive COVID-19 test?
- What is their vaccination status?
Q: How should employers respond when a vaccinated employee is exposed to COVID-19?
Canally: All vaccinated and non-vaccinated employees should be wearing appropriate PPE based on risk to exposure. If the employee knowingly is setting up a patient with COVID, then that employee should notify their primary care provider for medical advice regarding testing, etc. It also relates back to the vaccination status of the DMEPOS employee that is delivering the care/service.
Training is key for all organizations. Some key preparation and staff training considerations:
- What is working and what is not working
- Update and review infection control/prevention policies
- Update and review emergency preparedness policies
- Be prepared for the current variant of COVID-19 as well as any new ones
Of course, protecting employees is linked to protecting patients. In assessing patients/customers that enter your operation, you need to protect the patients as well as your employees.
Some patient protection rules you can implement:
- Do they have symptoms?
- Have they been exposed?
- Is their visit to your operation a must?
- If not, they should not come in person
For patients entering your retail space:
- Limit number of people at a time
- They must wear a mask as well
- Limit time of exposure as best you can
Always remember You are in control of yourself, your employees, your business, and your customers. Make sure everything is documented in policy and all your employees are trained.
Hinton: The Occupational Safety and Health Administration (“OSHA”), as well as the Centers for Disease Control (the “CDC”), recommend that fully vaccinated employees who have a known exposure to someone with suspected or confirmed COVID-19 should get tested three to five days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result.
Therefore, if an employer receives notification that a fully vaccinated employee is exposed to COVID-19, the employer should instruct the employee to wear a mask while in the workplace for 14 days post-exposure or until he/she receives a negative test result. In general, the CDC considers people fully vaccinated: (a) two weeks after their second dose in a two-dose series, such as Pfizer or Moderna vaccines, or (b) two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.
In addition, the employer should instruct a fully vaccinated employee exposed to COVID-19 to strictly monitor himself/herself for symptoms of COVID-19 and maintain social distance (6 feet) from coworkers as much as practicable. If symptoms develop, the employer should send the employee home so that he/she may immediately self-isolate.
Hinton also answered an additional question that was not asked in the TCT webinar, but is relevant:
Q: Can employers legally require employees to be vaccinated?
Hinton: The Equal Employment Opportunity Commission (“EEOC”) has opined that employers are allowed to require all employees physically enteringthe workplace be vaccinated for COVID-19, “so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964.” The Americans with Disabilities Act (the “ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) exempt employees with disabilities (covered by the ADA) and sincerely held religious beliefs, practices, or observances (covered by Title VII) from employer-mandated vaccination requirements and require employers to provide reasonable accommodations or modifications for such exempt employees unless such reasonable accommodations or modifications would cause the employer an “undue hardship.”
Employees requesting an exemption from an employer-mandated vaccination requirement do not need to use special language such as “disability” or “accommodation”; if an employee makes a claim to any manager, owner, or HR employee that he/she cannot receive a vaccination due to a medical condition or religious belief, practice, or observance, the employer needs to undergo the reasonable accommodation process with the employee claiming the exemption.
An employee who does not get vaccinated due to a disability or sincerely held religious belief, practice, or observance may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment.
Employees who are not vaccinated because of pregnancy may also be entitled (under Title VII) to adjustments to keep working if an employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.