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:
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.
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.