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Employers Grapple With Cold & Flu Season

Jan. 23, 2024
In the wake of rising COVID-19 cases, new laws impact how to react.

Reports of a rising tide of COVID-19 cases and pressure exerted by the winter flu and cold season have raised new concerns for employers, but strategies can be deployed to shrink the risk of exposure to members of your workforce and customers and your liability under the law.

Evidence of the renewed fear of the pandemic’s return is everywhere to see, with more people choosing to return to the practice of wearing facemasks in public, while the news media has done everything it can to make sure the public is aware of the government’s newest concerns.

In recent months, the United States also has seen a rise in the flu, RSV and other infectious respiratory diseases. Some of these, like tuberculosis, can be traced to the mass migration into the country, which also has resulted in startling increases in other diseases once thought to have been conquered, like polio and measles.

On Dec. 14, the CDC issued a health advisory requesting that healthcare providers administer more influenza, COVID-19 and RSV immunizations. At the same time it urged the public to get these vaccinations and get tested for the coronavirus if they believe they are experiencing symptoms or may have been exposed to the virous.

About 7 million fewer adults have gotten flu shots this season compared with the previous virus season, the government says. The total of those who have taken the jab this season is about 36% of the eligible population for both adults and children, according to the most recent CDC data. However, the public also seems to have wearied of such warnings and become more skeptical about COVID vaccinations and their efficacy.

Regardless of what you may think about what the federal government says about COVID-19 at this point, it is undeniably true that colds and the flu remain an ongoing threat and must be taken seriously by employers. Both the CDC and the Occupational Safety and Health Administration (OSHA) offer timely advice for employers on how to best deal with the flu season (although little of what they offer is really new). This includes encouraging employees to get the seasonal flu vaccine when it is available and even considering the possibility of hosting a flu vaccination clinic in your workplace. General advice from OSHA and others also includes encouraging sick workers to stay home when they are sick to avoid spreading disease.

The CDC recommends that workers who have a fever and respiratory symptoms stay at home until 24 hours after their fever ends (100 degrees Fahrenheit [37.8 degrees Celsius] or lower), without the use of medication. Not everyone who has the flu will have a fever. Other symptoms could include a runny nose, body aches, headache, tiredness, diarrhea, or vomiting.

This widely recommended practice of sending employees home when they are sick to limit the spread of disease is not universally accepted, however. I once had a boss who liked to boast that he never took a sick day off work in his entire life. These days that might not be the best example for you to set for members of your workforce.

“Develop flexible leave policies that encourage workers to stay home, without penalty, if they are sick,” OSHA tells employers. “Discuss other human resource policies with staff, including administrative leave transfer between employees, pay policy for sick leave, childcare options, and what to do when ill during travel.”

At this point, everyone should be familiar with most of the remaining recommendations, including frequent hand washing and keeping your mouth covered when you cough or sneeze. Although OSHA does not mandate masks, the CDC continues to recommend their use when in crowds and when you come into contact with large numbers of people during the day.

OSHA also urges employers to reconsider sending employees on business travel to areas with high illness rates and check regularly regarding up-to-date travel advisories that are posted by the CDC. In addition, OSHA suggests that workers check themselves for fever and any other signs of flu-like illness before starting travel and to notify their supervisors and stay home if they feel ill.

“Advise workers who become ill while traveling or on temporary assignment to notify their supervisors,” OSHA stresses. “Workers who become ill while traveling and are at increased risk of flu complications and others concerned about their illness should promptly call a healthcare provider.”

Are Facemasks Returning?

Americans remain deeply divided over the subject of facemasks, and some studies that followed the COVID lockdowns have questioned their efficacy. Perhaps the best advice for employers at this point is to remain flexible and apply a standard of tolerance to assuage workers’ fears. Unless it is impossible to do so for essential business or safety reasons, it is probably a good idea to allow employees to wear masks as they see fit.

OSHA began developing a COVID rulemaking standard for employers a few years ago, and in early 2023 it was reported that the final version of the rule was undergoing review at the White House in advance of an immediate issuance, but instead it just sat in bureaucratic limbo and has yet to see the light of day.

When finally issued, the rule is expected to cover actions the agency will expect employers to apply to areas such as hazard assessments, screening requirements, personal protective equipment (PPE), physical distancing, physical barriers, cleaning and disinfection, ventilation, notification of COVID-19 cases, return to work, and training,

At this point, it is questionable whether the OSHA COVID final rule will be released any time soon given that we are now in a presidential election year and the controversy that arose after the Biden administration decided to use an OSHA Emergency Temporary Standard (ETS) mandating that employers made sure their workers were vaccinated.

That ETS eventually was tossed out by the U.S. Supreme Court, while the fallout from other administration vaccine mandates for federal workers, the military and federal contractors also is still being felt. Lawsuits are continuing to proceed that were filed by emergency and other personnel who lost their jobs with little or no recourse or appeal after they declined to be vaccinated.

Employers also still need to be aware that over recent years a plethora of laws have been enacted at the federal, state and local level that can seriously impact how they choose to deal with the cold and flu season as well as COVID.

In California, for example, some of the old COVID-19 rules for employers expired at the end of 2023, including some notice requirements. However, employers still must notify employees and independent contractors who had a close contact with someone who has COVID-19, as well as any employer with an employee who had a close contact with an infected person, as soon as possible.

In many areas, local health department requirements also can apply. Most employers are still required to follow requirements dealing with exclusion, training and office requirements in California as well as some other states.

On the upside for employers, the end of 2023 also meant the end of California’s presumption that any employee who had COVID-19-related illness under certain prescribed conditions was work-related for purposes of awarding workers’ compensation benefits, notes Joanne Warriner, an attorney with the law firm of Ervin Cohen & Jessup.

In addition, employers should pay close attention to the proliferation of changes in sick leave laws and regulations at the national, state and local levels, many of which are of quite recent vintage, point out attorneys Thomas Strong and Rebecca J. Lee of the Venable law firm. California now requires 40 hours of annual paid sick leave be provided to employees, who can accrue up to 80 hours of leave. Under the new Illinois paid leave law, most employers must provide their workers with at least 40 hours of paid leave to be used for any reason.

After employees exhaust their paid time off, they may be entitled to additional unpaid leave if the illness qualifies as a serious medical condition under the federal Family Medical Leave Act (FMLA). While the common cold and flu are typically not serious enough to be a basis for leave under the FMLA, this can be true for both if complications arise. Also keep in mind that similar state laws requiring unpaid leave could be broader.

Strong and Lee stress employers should also remember that employee entitlements to paid and unpaid leave under both federal and state laws also frequently apply to the illnesses of employees’ family members as well.

They also warn that employers consider whether an employee’s request related to illness could qualify as a request for an accommodation for a disability under the Americans with Disabilities Act (ADA) or a parallel state law. If so, employers might have a duty to engage in the interactive process, in order to provide an employee with a reasonable accommodation.

“Employers should exercise caution whenever they respond to an employee’s request to work remotely when it relates to any medical condition,” Strong and Lee recommend. “Generally, typical winter illnesses do not constitute disabilities under the ADA or similar state laws. However, it is possible that extended complications arising from COVID could constitute a disability under federal or state law.”

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