Health Screening of Staff at IHS Operated Facility During an Epidemic or Pandemic

Refer to: OQ

1. Purpose. The purpose of this Circular is to establish the Indian Health Service (IHS) policy for the rare necessity for health screenings of IHS Staff during an epidemic or pandemic.
2. Background. An “epidemic” is a widespread occurrence of an infectious disease. A “pandemic” is the worldwide spread of an epidemic. The IHS is committed to implementing protective measures to mitigate workplace hazards that are causing or are likely to cause death or serious physical harm to Staff. In an epidemic or pandemic, it may become a Business Necessity to screen Staff for infectious disease exposure. This policy is consistent with the Business Necessity of ensuring Staff safety.
3. Authorities and References.
   1. Occupational Safety and Health (OSH) Act, 29 U.S.C. § 654(a)(1)
   2. Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213
   3. Rehabilitation Act, 29 U.S.C. § 794
   4. Civil Rights Act, Title VII, 42 U.S.C. § 2000e-16
   5. 29 C.F.R. Parts 1605, 1614, 1630
   6. 5 C.F.R. §§ 339.205, 339.301
   7. Indian Health Manual (IHM), Part 1, Chapter 9, Occupational Health and Safety Program
   8. References:
      1. Centers for Disease Control and Prevention (CDC), Pandemic Influenza Exit Disclaimer: You Are Leaving www.ihs.gov 
      2. Equal Employment Opportunity Commission (EEOC), Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Exit Disclaimer: You Are Leaving www.ihs.gov 
      3. Office of Personnel Management (OPM), Pandemic Information, Agency Preparation Exit Disclaimer: You Are Leaving www.ihs.gov 
      4. OPM, System of Records Notice, Employee Medical File Records Exit Disclaimer: You Are Leaving www.ihs.gov 
4. Definitions.
   1. Business Necessity - A practice that is necessary to ensure workplace safety.
   2. Direct Threat - A significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
   3. Disease - A definite pathological process having a characteristic set of signs and symptoms. It may affect the whole body or any of its parts, and its etiology, pathology, and prognosis may be known or unknown, and it is spreading and has been classified as an epidemic or pandemic.
   4. Employee Medical Folder (EMF) - A separate folder established to contain the occupational health records (both long- and short-term records) maintained by the employing agency during the employee’s federal service. The EMF is kept separate from the employee’s Official Personnel File and other personnel records and, in the IHS’s case, also is separate from any medical records that the IHS maintains as a healthcare plan and health provider.
   5. Local and Situational - Assessment of conditions at the facility/service unit level.
   6. Staff - For the purpose of this policy, includes a civilian employee (including those on detail to IHS from other federal agencies), United States Public Health Service (USPHS) Commissioned Corps Officer, personal services contractor, independent contractor, student, resident, or volunteer at an IHS-operated facility. (Civilian employees and USPHS Commissioned Corps Officers serving at non-IHS facilities under an Intergovernmental Personnel Act Agreement or a Memorandum of Understanding are not included in the definition of Staff covered by this policy; instead, such individuals will be subject to the screening policies and procedures adopted by the organization where they are assigned, but only to the extent those procedures are authorized by federal law and consistent with federal policy.)
5. Policy
   1. During an epidemic or pandemic, IHS offices and facilities may conduct health screening of Staff after a three-step analysis:
      1. assess the Business Necessity;
      2. assess the existence of a Direct Threat, consistent with applicable guidelines from CDC and other public health authorities; and
      3. identify and post the screening policies and procedures necessary to address the Direct Threat.
   2. All screenings must be performed consistent with other laws, such as the ADA, which applies to disability-related inquiries.
   3. Among other things, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace, unless they pose a Direct Threat that cannot be eliminated or reduced with reasonable accommodation. 42 U.S.C. §§ 12112, 12111(3); 29 C.F.R. §§ 1630.2(r), 1630.4, 1630.15(b)(2). Any requests for alternative screening procedures and policies due to religious grounds or a medical condition must be treated the same as any other request for reasonable accommodation. See, e.g., 42 U.S.C. §§ 2006e-16, 12112; 29 C.F.R. §§ 1605.2, 1630.2(o), 1630.9.
   4. Assessment of Business Necessity.

      Ensuring Staff safety during an epidemic or pandemic may require extraordinary steps to protect Staff from such threats. During an epidemic or pandemic, the IHS may determine that screening Staff, including asking about symptoms or testing for the Disease, is a Business Necessity required to ensure Staff safety. The assessments will be specific to the Disease and, depending on the Disease, may be done at the national or local level. (For example, based on CDC and public health authorities guidance as of March 2020, the COVID-19 pandemic represents a hazard to Staff. The CDC and public health authorities acknowledged the threat of community spread of COVID-19. They issued precautions to slow the spread, such as the identification and self-isolation of individuals who test positive or show symptoms of COVID-19.)

   5. Assessment of Direct Threat.

      Once the IHS determines that screening is a Business Necessity, the IHS may require screening of all Staff where there is a Direct Threat. The determination of a Direct Threat must be based on objective, and factual information meant to assess:

      1. the duration of the risk;
      2. the nature and severity of the potential harm;
      3. the likelihood that potential harm will occur; and
      4. the imminence of the potential harm.

      The evaluation should consider both the offices where a Direct Threat exists and the Staff who must be screened to address the Direct Threat. The determination that a Direct Threat exists should be reviewed at the end of the pandemic or epidemic to determine whether the Direct Threat continues. Once it is determined that the Direct Threat no longer exists, the screening policies and procedures should be terminated.

   6. Permissible Screening Requirements. Once the IHS identifies a Business Necessity and determines that a Direct Threat exists, the IHS will consult CDC, other public health authorities, and reputable medical sources to determine the screening policies and procedures necessary to address the Direct Threat. The IHS will consult such sources for guidance on the Disease, any recommended practices for screening Staff for the Disease, and implementation of mitigating strategies to prevent harm to Staff and patients (e.g., self-isolation/quarantine, contact investigation, etc.).

      NOTE: The IHS may NOT ask Staff whether they have a medical condition that could make them especially vulnerable to a Disease. However, Staff may voluntarily self-identify if they have such a condition.

   7. Roles and Responsibilities
      1. IHS Director
         1. Determine that Staff screening is a Business Necessity in light of the multi-Area epidemic or pandemic, or approve an Area Director’s determination of a Business Necessity within their Area.
         2. Determine that a multi-Area Direct Threat exists, if warranted by the nature of the pandemic or epidemic; or, if an epidemic is more localized, determine if IHS Headquarters Staff and facilities face a Direct Threat as a result of the epidemic or Notify Area Directors that they may determine the existence of a Direct Threat at IHS-operated facilities in their respective Areas.
         3. Notify Area Directors that they may implement screening policies and procedures at IHS-operated facilities in their respective Areas, after it is determined that a Direct Threat exists.
         4. In consultation with the IHS Deputy Director for Management Operations, the IHS Chief Medical Officer (CMO), Designated Agency Safety and Health Official, and Office of Quality Infection Prevention and Control Coordinator, determine which screening policies and procedures are necessary to address the Direct Threat and provide oversight of the following
            1. Notify IHS Headquarters Staff of the local and situational screening requirements and implement the screening policies and procedures.
            2. At the end of the pandemic or epidemic, review the prior determination that a Direct Threat exists. Once it is determined that a Direct Threat no longer exists, terminate the screening policies and procedures.
            3. Ensure confidentiality of information obtained through the screening procedures.
            4. Consult the IHS Privacy Officer before releasing any information obtained through the screening procedures.
      2. IHS Deputy Director for Management Operations; IHS CMO; IHS Designated Agency Safety and Health Official; and IHS Office of Quality, Infection Prevention and Control Coordinator
         1. Advise the IHS Director on the Business Necessity, the existence of a Direct Threat, and the symptoms associated with the Disease.
         2. Advise the IHS Director on the screening policies and procedures that are necessary to address the Direct Threat.
         3. Notify IHS Headquarters Staff of the local and situational screening requirements and implement the screening policies and procedures.
         4. Ensure confidentiality of information obtained through the screening procedures.
         5. Consult the IHS Privacy Officer before releasing any information obtained through the screening procedures.
      3. Area Directors
         1. Determine that Staff screening is a Business Necessity in light of a local or regional epidemic and submit the determination to the IHS Director for approval.
         2. Subject to any agency-wide determinations made by the IHS Director, determine which offices at IHS-operated facilities in their respective Areas face a Direct Threat as a result of an epidemic or pandemic and which Staff must be screened to address the Direct Threat.
         3. At the end of the pandemic or epidemic, review the determination that a Direct Threat exists for the IHS-operated facilities in their respective Areas and, once it is determined that a Direct Threat no longer exists, terminate the screening policies and procedures for such facilities.
         4. Subject to any agency-wide determinations made by the IHS Director, in consultation with the Area CMO, Area Infection Prevention Consultant, and/or Area Safety Officer, determine which screening policies and procedures to implement, consistent with local public health guidelines.
         5. Notify Staff of the local and situational screening requirements and implement the screening policies and procedures.
         6. Ensure confidentiality of information obtained through the screening procedures.
         7. Consult the Area Privacy Coordinator before releasing any information obtained through the screening procedures.
      4. Area CMO; Area Infection Prevention Consultant and/or Area Safety Officer
         1. Advise the Area Director on determinations of a Business Necessity and the existence of a Direct Threat, and the symptoms associated with the Disease.
         2. Advise the Area Director on the screening policies and procedures that are necessary to address the Direct Threat.
         3. Ensure confidentiality of information obtained through the screening procedures.
         4. Consult the Area Privacy Coordinator before releasing any information obtained through the screening procedures.
         5. When the situation dictates, maintain records of employee exposure in accordance with applicable OSHA regulations (see, e.g., 29 C.F.R. § 1910.1020; IHM Part 1, Chapter 9 – Occupational Safety and Health Program) and regulations governing EMF (5 C.F.R. part 293, subpart E).
      5. Chief Executive Officer
         1. Notify Staff of the local and situational screening requirements and implement the screening policies and procedures.
         2. Ensure confidentiality of information obtained through the screening procedures.
         3. Consult the Area Privacy Coordinator before releasing any information obtained through the screening procedures.
         4. Ensure implementation of screening procedures and provisions of training to Staff as appropriate.
         5. When the situation dictates, maintain adequate records and ensure that IHS Staff follow the privacy rules that apply to EMF (see, e.g., 5 C.F.R. part 293, subpart E; IHM Part 1, Chapter 9 Appendix F – Occupational Health Records – The Employee Medical File System).
      6. Office of Human Resources and Servicing Regional Human Resources Offices

         Advise IHS supervisors and Staff of human resources laws, regulations, and procedures that may impact the operation of this circular.

      7. HQ Diversity Management and Equal Employee Opportunity Staff

         Advise IHS supervisors and Staff of Equal Employment laws, regulations, and procedures that may impact the operation of this circular.

      8. IHS Privacy Officer and Area Privacy Coordinators
         1. Advise the IHS Director, Area Directors, and Staff, as applicable, on maintaining the confidentiality of information obtained through screening procedures.
         2. Respond to, or advise on, requests to disclose information obtained through screening procedures.
      9. All Staff

         Comply with the screening policies and procedures adopted pursuant to this policy.

   8. Confidentiality, Records, and Disclosure.
      1. Confidentiality. All medical information about Staff, including information obtained through the screening procedures, shall be confidential.
      2. Records.
         1. Records on specific individuals obtained or created during the screening process may be kept only in the EMF (see, e.g., 5 C.F.R. part 293, subpart E; IHM Part 1, Chapter 9 Appendix F – Occupational Health Records – The Employee Medical File System).
         2. Personally Identifiable Information will be protected during these screenings. It will be collected only if the local and situational conditions require that the information be collected.
         3. Records without Personally Identifiable Information that are obtained or created during the screening process will be kept securely and maintained at the local level in compliance with records management policies.
      3. Disclosure.

         Medical information about Staff that is obtained through the screening procedures may be disclosed only in accordance with applicable laws. The IHS Privacy Officer or Area Privacy Coordinator must be consulted to determine if any disclosure is permissible.

6. Supersedure. None.
7. Effective Date. This Circular becomes effective on the date of signature.
/Michael D. Weahkee/
RADM Michael D. Weahkee, MBA, MHSA
Assistant Surgeon General, U.S. Public Health Service
Director, Indian Health Service