New COVID Testing Guidance Requiring Employers To Obtain Informed Consent

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The Centers for Disease Control and Prevention (CDC) recently issued new guidance that will require employers to get informed consent from employees before testing them for COVID-19. In October, the CDC released guidance on employer testing, but it did not issue revised guidance containing the informed consent requirement until January 21. The new guidance states that “informed consent required disclosure, understanding, and free choice and is necessary for an employee to act independently and make choices according to their values, goals, and preferences.”

Earlier guidance issued by the Equal Employment Opportunity Commission (EEOC) also directed employers to obtain informed consent before testing. The CDC recommends employers to provide the workers who will be tested with “complete and understandable information about how the employer’s testing program may impact employee’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.” 


According to the CDC, a few things for an employer to consider when developing a COVID testing program should be:

• Why is the employer offering the test to begin with?

• How frequently will employees be tested?

• How to effectively obtain employee consent.

• What to do if an employee declines to be tested.

The CDC also offers a list of key measures an employer should implement when developing a testing program to ensure that informed consent is obtained, including:

• Ensure safeguards are in place to protect an employee’s privacy and confidentiality.

• Provide complete and understandable information about how the employer’s testing program may impact employees’ lives, such as if a positive test result or declination to participate in testing may mean exclusion from work.

• Explain any parts of the testing program an employee would consider especially important when deciding whether to participate. This involves explaining the key reasons that may guide their decision.

• Provide information about the testing program in the employee’s preferred language using non-technical terms. Consider obtaining employee input on the readability of the information. Employers can use this tool to create clear messages.

• Encourage supervisors and co-workers to avoid pressuring employees to participate in testing.

• Encourage and answer questions during the consent process. The consent process is active information sharing between an employer or their representative and an employee, in which the employer discloses the information, answers questions to facilitate understanding, and promotes the employee’s free choice.

Executive Order Signed to Direct Federal Regulators to Issue Stronger Safety Guidance For Workplaces Operating Amid the Pandemic

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Newly elected U.S president Joe Biden signed an executive order on Thursday, January 21st, that seeks to reorient workers’ safety guidelines and enforcement at the Labor Department’s workplace safety division - the Occupational Safety and Health Administration (OSHA). 

The new order on “Protecting Worker Health and Safety” directs OSHA to update COVID safety recommendations for businesses within the next two weeks, review its enforcement efforts, and study whether a temporary emergency standard is necessary. This executive order would be a shift from the Trump administration's more business and industry-focused approach and would put more emphasis on the predicament of workers. Throughout the early months of the COVID breakout, OSHA had relatively lax enforcement of workplace safety guidelines, which caused workers to form unions.

Biden’s executive order also calls for OSHA to train its enforcement apparatus on outbreaks. This is accomplished by launching a “national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles”. It also directs the Department of Labor to conduct a multilingual outreach program to publicize the efforts better.

Baltimore Gas and Electric Fined Over $437,000 for Safety Violations in a 2019 Gas Explosion

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Maryland has fined Baltimore Gas and Electric (BGE) for over $437,000 on January 7th, 2021, for safety violations related to a 2019 gas explosion at a Columbia office park. The state has also ordered the utility company to follow through on a remediation plan to upgrade gas lines for more than 1,250 buildings, which could cost around $17 million to prevent future accidents. 

The Public Service Commission of Maryland (PSC) revealed that BGE violated numerous state and federal statutes and regulations. They were ordered to pay two installments of $218,647, and it must be paid within 15 business days. BGE released a statement noting that they have 57 projects currently and have been working to improve 253 gas and electric common service trenches configured the same as those in the explosion. They expect to complete all of the projects by the end of 2021. 

BGE also plans to upgrade an additional 1,000 buildings with smaller-diameter gas pipes, using new practices designed to restrict gas service when the gas flow exceeds certain limits. They expect the upgrades to be completed by the end of 2023. All of these projects will ensure the safe and reliable operations of the BGE system so that future accidents can be prevented.

EPA Issues Final Rules to Reduce Exposure to Five PBT Chemicals

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The US Environmental Protection Agency (EPA) released final rules under the Toxic Substances Control Act (TSCA) that will reduce exposure to five chemicals that are persistent, bioaccumulative, and toxic (PBT). The FDA released a statement that “PBT chemicals are of particular concern not only because they are toxic but also because they remain in the environment for long periods and can build up or accumulate in the body.” These agency efforts can be an essential step to protect the health of children, workers, and fishers in America. 

The finals rules will limit or prohibit the manufacturer, processing, and distribution in commerce of the following five chemicals:

  • Decabromodiphenyl ether (DecaBDE)

  • Phenol, isopropylated phosphate 3:1 (PIP (3:1))

  • 2,4,6-tris(tert-butyl) phenol (2,4,6-TTBP)

  • Hexachlorobutadiene (HCBD)

  • Pentachlorothiophenol (PCTP)

DecaBDE

DecaBDE is toxic to aquatic invertebrates, fish, and terrestrial invertebrates. There have been reports of the chemical having developmental, neurological, and immunological effects. 

Even though many uses of decaBDE have ceased, EPA has concluded that humans or the environment are likely exposed to decaBDE under certain conditions. 

Acceptable uses include: 

  • Manufacture, processing, and distribution in commerce for use in curtains in the hospitality industry.

  • Processing and distribution in commerce for use in wire and cable insulation in nuclear power generation facilities.

  • Manufacture, processing, and distribution in commerce for use in parts for new aerospace vehicles, and distribution in commerce of the new vehicles containing such parts

  • Manufacture, processing, and distribution in commerce for use in replacement parts in motor vehicles, and distribution in commerce of the replacement parts themselves.

PIP (3:1)

PIP (3:1) is toxic to aquatic plants, aquatic invertebrates, sediment invertebrates, and fish. There is potential for reproductive and developmental effects, neurological effects, and effects on systemic organs, specifically adrenals, liver, ovaries, heart, and lung. 

Acceptable uses include: 

  • Processing and distribution in commerce for use in aviation hydraulic fluid in hydraulic systems and use in specialty hydraulic fluids for military applications

  • Processing and distribution in commerce for use in lubricants and greases;

  • Processing and distribution in commerce for use in new and replacement parts for the aerospace and automotive industries;

  • Processing and distribution in commerce for use in specialized engine air filters for locomotive and marine applications;

  • Processing and distribution in commerce for use in sealants and adhesives; and

2,4,6-TTBP

2,4,6-TTBP is toxic to aquatic plants, aquatic invertebrates, and fish and also has the potential for liver and developmental effects.

The EPA prohibits the distribution in commerce of 2,4,6-TTBP and products containing 2,4,6-TTBP at concentrations above 0.3% by weight in any container with a volume of fewer than 35 gallons. In order to effectively prevent the use of 2,4,6-TTBP as a fuel additive or fuel injector cleaner by consumers and small commercial operations (e.g., automotive repair shops, marinas).

HCBD

HCBD is toxic to aquatic invertebrates, fish, and birds and has been identified as a possible human carcinogen. Data indicate the potential for renal, reproductive, and developmental effects.

The EPA is prohibiting the manufacturing (including import), processing, and distribution in commerce of HCBD and HCBD-containing products or articles, except for the unintentional production of HCBD as a by-product during the production of chlorinated solvents, and the processing and distribution in commerce of HCBD for burning as a waste fuel.

PCTP

PCTP is toxic to protozoa, fish, terrestrial plants, and birds. Data for analogous chemicals (pentachloronitrobenzene and hexachlorobenzene) indicate the potential for liver and reproductive effects. However, no animal or human hazard data have been identified.

The EPA prohibits manufacturing (including import), processing, and distribution in commerce of PCTP and products or articles containing PCTP unless PCTP concentrations are at or below 1% by weight.

Trade Unions Calling on European Commission to Take More Action to Secure Workers’ Safety in Regards to COVID-19

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Many companies are concerned that COVID-19 is not only a public-health issue but becoming an occupational health issue, as the workplace provides fertile ground for high transmission rates of the virus. If the European Union (EU) fails to guarantee workers’ health and safety, it will be more challenging to recover from the crisis. Trade unions are calling on the European Commission to formally recognize COVID-19 as an occupational disease. 

The European Trade Union Institute has provided evidence that the EU government is not doing enough to counter workplace risks from the pandemic, failing to provide adequate protective equipment for high-risk, front-line carers or implementing full safety measures for workers in healthcare, transport, retail, and other sectors. A survey on European Working Conditions found that people working from home are twice as likely to work 48 hours or more and six times more likely to work in their free time than others, which puts workers at a higher risk for anxiety to affect their mental health. About three in every five workers in the European Union report musculoskeletal disorders (MSDs), based on data from the sixth European Working Conditions Survey.  This has led the EU-OSHA to launch a campaign to offer tools and resources to help employers tackle MSDs effectively at any workplace in Europe. The campaign highlights three priority areas focusing on MSDs prevention, facts and figures, and chronic conditions, which all cover a specific topic related to MSDs. 

The deputy general secretary of the European Trade Union Confederation states that a new updated EU strategic framework should address many mobile and migrant workers’ living and working conditions in Europe. This will also ensure that employers fulfill their obligations to provide safe, hygienic workplaces and accommodations, with the EU-OSHA and the European Labour Authority.