Kraken: COVID’s Most Contagious Mutation

As we enter the new year, and the fourth year of the pandemic, the COVID-19 virus continues to mutate. Two new Omicron subvariants, known as XBB and XBB.1.5 – unofficially nicknamed “Kraken” by some scientists – have emerged as the most transmissible strains to date. The Center for Disease Control and Prevention (CDC) estimates that these new strains account for close to 50% of current COVID-19 infections and are leading to a spike in infections, as we’ve seen the last two winters. While theses variants have not accounted for by a significant increase in death rates, employers should still review their COVID-19 policies to mitigate the spread of infection (and avoid scrutiny from federal and state workplace safety regulators).

CDC’s Guidance on Masks and Isolation Remains Intact

Many employers have been lulled into a false sense of security and have not kept track of the latest CDC guidelines regarding testing and isolation. The good news is that the guidance provided by the CDC in August 2022 remains relevant for employers seeking to promote best COVID-19 practices in 2023:

• Employees, regardless of their vaccination status, should remain isolated for at least five days after testing positive for COVID-19.
• Employees with no symptoms may end isolation five days after testing positive, but they should continue to wear a high-quality mask (when indoors and around others) and avoid high-risk individuals for at least eleven days after the positive test.
• Symptomatic employees must isolate for at least five days after testing positive, and they must continue to isolate until their symptoms improve and they are fever-free for 24 hours (without the use of fever-reducing medication). Additionally, employees who suffered shortness of breath or difficulty breathing, were hospitalized, or have a weakened immune system must isolate until the tenth day after testing positive, regardless of whether their symptoms are improving. They must continue to wear a high-quality mask and avoid high-risk individuals until at least the eleventh day after the positive test. Some masks, like N95 and KN95 respirators, offer greater protection than others, like standard cloth masks.
• As recently as December 16, 2022, the CDC estimated that more than 44% of U.S. counties were experiencing medium-to-high COVID-19 community levels. Today, more than 60% of counties are at those levels. In those counties, the CDC advises implementing a number of mitigation strategies, like wearing high-quality masks when indoors in public and testing individuals who have household or social contact with someone at high-risk of getting very sick. In high-risk counties, the CDC recommends universal mask-wearing. Although no government agencies have gone back to a mask-wearing mandate, there is nothing to stop an employer from imposing such a requirement for its employees.

OSHA Remains Aggressive in Doling Out Penalties for COVID-19 Related Violations

After the Occupational Safety and Health Administration (OSHA) saw its Emergency Temporary Standard (ETS) knocked back by the Supreme Court early last year, U.S. Secretary of Labor Marty Walsh issued a statement that OSHA would not rest. Instead, it would use its existing powers, including its authority under the General Duty Clause, to enforce workplace standards relating to the transmission of COVID-19.

By November 30, 2022, the agency had issued close to 20,000 COVID-related complaints to employers it found in violation, assessing $7.9 million in penalties. Those complaints were filed for a wide variety of reasons, like an employer’s failure to provide adequate PPE, not sending home employees exposed to COVID, and lack of social distancing. OSHA is showing no signs of slowing down. While the inspection trends are broad, pandemic-related inspections remain one of OSHA’s highest priorities.

What To Do

COVID-19 is not going away – and neither is OSHA. Though most of our day-to-day lives more resemble pre-pandemic times than the prior restrictive and isolated days, employers should not grow complacent when it comes to the oversight of their workplaces. There are four primary ways employers can limit the spread of these new variants and simultaneously avoid penalties for COVID-related violations.

1. Have a Written COVID-19/Infectious Disease Policy. Even if an employer never adopted a written COVID-19 plan, it’s never too late to document the policies they have in place to keep employees safe from any infectious disease. This is especially important when considering future changes in infection rates in different communities. Employers should document what they are doing to keep employees healthy in response to COVID-19 or any other infectious disease. This helps with training employees on the safety programs.
2. Engage with Employees. The companies that thrived during the pandemic are those that communicated with, listened to, and engaged their workforce. Ask non-managers for feedback on company policies, listen and address their concerns through tasks like safety committees, audits, and safety improvement projects, and provide a transparent workplace where their concerns are considered.
3. Clean the Workplace. There are several benefits to keeping a clean workplace. A sanitized workplace will not just help mitigate the transmission of COVID-19, it will keep employees feeling happy and safe. It may also lead OSHA inspectors to spend less time looking for violations.
4. Consider Masking Policies in Areas of High Community Spread. Employers in areas of high COVID-19 community levels of transmission should consider revisiting mask policies. There is a risk of an OSHA inspection or a General Duty Clause citation if an employer fails to implement an appropriate mask policy in such an area. While the workforce may be resistant to a mask mandate depending on circumstances, there may be other ways to implement a policy that offers some level of protection (requiring masks at certain areas or times of day, for example). If you wish to talk through what such a policy might look like, please feel free to contact Jay Rollins or Debra Schwartz.

We will continue to monitor these developments and provide updates as appropriate. This information is not intend to be, and should not be construed as, legal advice for any particular fact situation. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.