employers don’t become complacent about pandemics

By Dr. Jim Castagnera, Esq.

Partner, Portum Group International

I’ve said it before in this Blog, and it bears repeating:  The Four Horsemen of Humankind’s Apocalypse are: Climate Change – Nuclear War – Artificial Intelligence – Pandemics.  Recently I’ve been preoccupied with, and consequently writing about, A.I., especially ChatGPT.  As great a threat as I am convinced A.I. is, let’s not lose sight of the other Horsemen.  This week, I want to remind you all --- but especially the employers among you --- that leaving COVID-19 in the rearview mirror doesn’t mean pandemics are out of the saddle.

Yes, it’s true: the pandemic is officially over as of last month.  Based on the current COVID-19 trends, the Department of Health and Human Services (HHS) announced that the federal Public Health Emergency (PHE) for COVID-19, declared under Section 319 of the Public Health Service (PHS) Act, would expire at the end of the day on May 11, 2023. That doesn’t mean we can all just forget about it, as if it were a bad dream from which we’ve awakened. Because the end of the PHE changes some requirements and mandates for insurers and employers, employers must stay up-to-date on this evolving situation.

For example, according to the Society for Human Resource Management, the PHE, “mandate[d] that health insurance plans fully cover COVID-19 testing without employee cost-sharing, on both an in- and out-of-network basis. But that requirement now changes, meaning medical plans, including employer-sponsored plans, do not have to pay for testing and will have to decide how to proceed.” Employers will have to decide how to proceed with how they choose to cover, or not cover, COVID testing costs. Further, President Biden also announced that the COVID-19 vaccine mandate for federal employees, federal contractors, and effected health care workers would end on May 11, 2023.

On March 29, 2023 the U.S Department of Labor (DOL), U.S. Department of Health and Human Services (HHS) and U.S. Department of the Treasury issued new guidance regarding frequently asked questions about the end of the PHE, especially in regard to insurance questions. The FAQ includes details on COVID-19 “diagnostic testing, coverage of vaccines, and the extended deadlines for COBRA, special enrollments, and group health plan claims and appeals.”

Read the entire FAQ here: [https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-58.pdf].

[https://www.hhs.gov/about/news/2023/02/09/letter-us-governors-hhs-secretary-xavier-becerra-renewing-covid-19-public-health-emergency.html and https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/covid-public-health-emergency-ending-employer-impact.aspx#:~:text=May%2011%20marks%20the%20end,benefits%20enabled%20by%20the%20emergency.]

Also, stay tuned for new record-keeping requirements. At the beginning of 2023, OSHA officially named COVID-19 a recordable workplace hazard, and now, three years after the beginning of the pandemic, OSHA is finally purported to be ready to issue permanent COVID-19 regulations for healthcare employers and workers (although the most recent update came in January 2023, when the rule was undergoing review by the Office of Information and Regulatory Affairs (OIRA), and, as this publication goes to press in June 2023, a permanent standard has yet to be issued). The recordkeeping requirement from the temporary ETS remains in effect, requiring employers to establish and maintain a specific log to record cases of COVID-19 in their workplace, but because COVID-19 safety recommendations have changed since the original ETS was published, there are likely to be a number of changes to the policy.

[https://www.huntonlaborblog.com/2023/01/articles/agency-developments/better-late-than-never-osha-is-finalizing-covid-rules-nearly-three-years-into-the-pandemic/ and https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-is-finalizing-covid-19-rule-for-health-care-employers.aspx]

Additionally, there are other hazards out there of which you should be aware, especially if you have employees working abroad.  Consider, for example Ebola.  True, it’s been off the radar screen for a while… about four years to be exact. On April 16, 2019 (and updated on October 3, 2019), the CDC issued recommendations to address an Ebola outbreak (of approximately to 1,302 cases) in the Democratic Republic of the Congo. Key points include the following:

• CDC recommends that organizations sending U.S.-based workers to areas with Ebola outbreaks ensure the health and safety of those workers before, during, and after their deployment.

• Pre-deployment recommendations include educating workers about Ebola, travel vaccines, healthy behaviors, personal protective equipment, and travel health insurance.

• During-deployment recommendations include remaining in contact with all workers, periodically asking about any symptoms of or exposures to Ebola, and, for workers with potential occupational exposure to Ebola virus, contacting in advance the U.S. state or local health departments that have jurisdiction in the areas where workers will be staying after arrival in the United States.

• Post-deployment recommendations include staying in contact with all workers for 21 days after they leave the outbreak area while they self-monitor for symptoms of Ebola.

• CDC recommends that all workers with potential occupational exposure to Ebola virus who are traveling to the United States undergo a health and exposure assessment before their departure from the outbreak area.

[Read the recommendations in their entirety at the CDC website: https://www.cdc.gov/vhf/ebola/index.html.]

Will the next Ebola outbreak be more deadly… more easily transmittable… both?  I offer this simply as an example of what the next pandemic threat may be.  The possibilities are legion.  Consider small pox.  I vaccinated for it back in the “good old days” when we all sported a vaccination scar on our left bicep.  If your younger than I, were you vaccinated?  How about your employees/  Should you care?

The last reported case of smallpox occurred decades ago (1977), leading to a declaration by world health organizations that the disease had been eradicated. However, samples of the virus have been preserved in laboratories, making a terrorist attempt at starting a twenty-first century epidemic more than a theoretical possibility. Since humans are no longer vaccinated against the disease, the threat cannot be ignored.

Incubation takes 7 to 17 days (the average being 12) following infection. The characteristic rash appears on the face, followed by the arms and legs two to three days later. Pus-filled lesions leave the horrible scarring suffered by those who survive. Death occurs in 30 percent of cases.

The disease is spread from person to person by saliva. Victims are most infectious during the first week of the illness, but transmission is possible until all the lesions have lost their scabs.

Routine vaccination ended in 1962 and persons vaccinated up to that time are still assumed to be susceptible, along with the unvaccinated portion of the world population. The vaccine is not available although it can prevent or greatly lessen the severity of the disease, even within four days of exposure. The United States has an emergency supply of vaccine as there is no other known treatment.

What will the next pandemic be?  How deadly will it be?  I have no better idea than you do.  Of this I am certain:  There will be other pandemics.  And later, if not sooner, one of them will be as deadly as the Black Death in the 13th century.  Over all, I think we did pretty well in handling COVID-19.  America’s pharma-industry brought us an effective vaccine in record time.  Private enterprise cooperated and we came through it with the loss of ONLY (!) a million Americans.  If we’re honest, we’ll admit the death toll could have been a lot lower.  But here we are, our society and economy relatively intact.

The last thing we should be doing is congratulating ourselves.  We used to say in the Coast Guard that tragedies happen when you are sitting around, fat, dumb and happy.  Don’t let that happen to you and your organization.  Here are some best practices that OSHA and the CDC developed during the late, great COVID-19 pandemic.  You might consider making them an entrenched part of your health and safety protocols.

• Develop an Infectious Disease Preparedness and Response Plan: If one does not already exist, develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Stay abreast of guidance from federal, state, local, tribal, and/or territorial health agencies, and consider how to incorporate those recommendations and resources into workplace-specific plans. Plans should consider and address the level(s) of risk associated with various worksites and job tasks workers perform at those sites.

• Prepare to Implement Basic Infection Prevention Measures: For most employers, protecting workers will depend on emphasizing basic infection prevention measures. As appropriate, all employers should implement good hygiene and infection control practices.

• Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate: Prompt identification and isolation of potentially infectious individuals is a critical step in protecting workers, customers, visitors, and others at a worksite. Employers should inform and encourage employees to self-monitor for signs and symptoms of COVID-19, and employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.

• Develop, Implement, and Communicate about Workplace Flexibilities and Protections: Employers should take steps such as actively encourage sick employees to stay home and ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.

• Implement Workplace Controls: Occupational safety and health professionals use a framework called the “hierarchy of controls” to select ways of controlling workplace hazards. In other words, the best way to control a hazard is to systematically remove it from the workplace, rather than relying on workers to reduce their exposure. During a COVID-19 outbreak, when it may not be possible to eliminate the hazard, the most effective protection measures are (listed from most effective to least effective): engineering controls, administrative controls, safe work practices (a type of administrative control), and PPE. In addition to the types of workplace controls discussed below, CDC guidance for businesses provides employers and workers with recommended SARS-CoV-2 infection prevention strategies to implement in workplaces: www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html.

• Follow Existing OSHA Standards: Existing OSHA standards may apply to protecting workers from exposure to and infection with SARS-CoV-2. While there is no specific OSHA standard covering COVID-19 exposure, some OSHA requirements may apply to preventing occupational exposure to COVID-19, including: OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 C.F.R. 1910 Subpart I); the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 U.S.C. §654(a)(1); and OSHA's Bloodborne Pathogens standard (29 C.F.R. 1910.1030). See also OSHA's Emergency Temporary Standard for healthcare providers (Q 15:141) and OSHA's July 7, 2021 Updated Interim Enforcement Response Plan (Q 15:145, below).

Read the full guidance here (which also delves into specific industry recommendations): https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf.