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Navigating Return to Work Amid Delta Variant: Employer Approaches to Public Safety

COVID-19’s highly infectious Delta variant is creating increasing tension as companies weigh a return to normality against risk and public safety measures. In many cases that return has been postponed or modified. The stakes are high, and strategic moves can make all the difference in minimizing risk for employees and customers. Here are several guiding principles employers can follow to navigate the return to work.

Since the start of the COVID-19 pandemic, employers have faced a number of decisions related to employee and customer safety—and the Delta variant is ensuring that will continue well into the balance of 2021. The Delta variant has: 

  • Been the cause of more than 93% of new US COVID-19 cases1

  • Led to 50% increase in hospitalizations

  • Been 40-80% more transmissible, with cases doubling every two weeks

The growing concerns created by the Delta variant have led many organizations to rethink their return-to-work strategies. From building fully remote offices to wearing masks and physical distancing, Delta has forced many to continue navigating health and safety guidelines and establishing protocols, including:

  • Mandatory mask-wearing for all, including vaccinated employees
  • Increased testing, including surveillance testing2 to monitor current state of pandemic within organization.
  • Mandatory vaccination requirements of employees.3

COVID-19’s resurgence is creating tension as companies weigh a return to normality against risk and safety measures, including potential workers’ compensation claims if a business mandates or encourages vaccinations and employees experience serious medical side effects.

Concerns of discriminatory lawsuits surrounding vaccine mandates and varying employee comfort levels with the vaccine are also being considered. While uncertainty abounds and scenarios play out, there are several guiding principles employers can follow to help manage risk.

 

Maintain agility

The non-linear nature of the pandemic requires agility. Mandates continue to change at state and local levels regarding closures, capacity limits, or mask requirements; restrictions that had been lifted or lightened have come back again. Forward-thinking employers are making plans to adapt to this level of uncertainty. They’ll likely need to quickly respond to changes at the local level, whether increased infection rates lead to closures or capacity restraints or vaccination patterns allow for more activity. Those employers who adopt an agile posture can expand and contract more easily and maintain as much business continuity as possible while mitigating risk.

Employers should develop a written response plan that outlines the steps being taken to protect employees, including measures to limit the spread of COVID-19, such as providing personal protective equipment, adopting more stringent hygiene practices, and giving instructions on what to do if an employee is sick. The plan should have an established review schedule with periodic revisions to prevent unintentional non-compliance with written plans that may have been established under former stricter conditions that may have since changed. Designating a team or task force responsible for guidance and compliance can help, especially in a rapidly changing environment.

Equally important is robust communications with employees and customers on the steps and measures being taken and what’s required of everyone to minimize risk. With a strong communications strategy, it becomes far more likely that companies will be able to adapt to change and bring employees and customers on board more quickly. 

 

Develop and uphold standards

In a dynamic and rapidly changing environment that varies greatly by jurisdiction, many employers are looking for a consistent set of guidelines to follow. They should start with the guidelines from the Centers for Disease Control and Prevention and the Occupational Health and Safety Administration. Keeping up with changes and understanding and implementing those practices is among the first moves employers should make. They should also be documenting those moves, ensuring that they can demonstrate what’s been done in response to workers’ compensation and general-liability claims, and in other situations such as those involving the Americans with Disabilities Act (ADA).

As with other risks, written policies alone are not coverage for the organization. Behavioral change and execution of those policies are where companies can demonstrate that they’re working to curb the risk of transmission and keep people safe.

 

Understand your casualty claims exposure and the claims process

Employers should understand where their exposures are, especially those in healthcare, senior living, or other essential industries such as grocery stores or public transportation. As restaurants and hospitality establishments continue to reopen, they must be diligent in managing their exposure risk. Employers should also consider a series of questions concerning possible employee exposure to COVID-19 through travel or their day-to-day work and interactions with the broader public, vendors, or partners; and also questions regarding their contingency plans. It’s critical that they understand and assess various scenarios and responses and engage a number of stakeholders to demonstrate the resources going into risk mitigation.

 

 

Should an employee pursue a workers’ compensation claim related to COVID-19, the employer should work closely with its claims administrator and carrier(s). The compensability of a workers’ compensation claim alleging COVID-19 as work-related is highly dependent on the jurisdiction and the individual facts of the claim. The question of compensability falls under each state's respective occupational diseases act or workers' compensation statute. In many states, the employee will need to prove the virus was contracted at work and that their work duties placed them at a greater risk to contract the virus than the risk faced by the general public.

In states that have adopted a presumption clause either by executive order or rule amendment, the burden shifts from the employee to the employer to prove the illness is caused by something non-occupational. However, just because a state has a presumption clause does not mean the COVID-19 claim will be deemed compensable since the presumption is rebuttable. An employer may dispute the presumption with evidence such as:

  • Measures to reduce potential transmission of COVID-19 in the place of employment
  • The employee’s non-occupational risks of COVID-19 infection
  • Statements made by the employee
  • Other evidence regularly used to dispute a work-related injury

Adherence to strong COVID-19 safety and hygiene practices are critical to combatting the spread of COVID-19 at work, but also in disputing an alleged workers’ compensation claim.  

 

Create a vaccination decision-making framework

Vaccinations will inevitably become part of the health and safety conversation, but the ways employers address vaccinations are uncertain, especially with booster vaccines now looming for all vaccinated individuals. While they can track which employees are vaccinated, they can’t ask why an employee isn’t vaccinated—and may need to make reasonable accommodations for employees who aren’t or can’t be. Potentially looming are ADA actions that might be raised by employees who are concerned about being treated differently. Employers should start preparing for that now and have a framework for vaccine tracking if they decide to deploy employees differently based on vaccination status.

 

Stay abreast of regulatory changes

Regulatory direction related to COVID-19 and employer liability is still unfolding. As with all regulatory changes, employers will be required to comply with certain standards. In the case of the pandemic, some regulations have been less prescriptive than employers are accustomed to, but that is likely to change. Employers should stay well informed of regulatory trends and influencing factors to respond quickly and strategically.

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Agility and adaptability are at the core of a successful risk-management response to the pandemic. By putting robust structures and processes in place, communicating effectively, and building on strong risk-management practices, companies will be better equipped to help navigate the uncertainty ahead. The stakes are high, and strategic moves can make all the difference in minimizing risk for employees and customers.

[1] 5 Things to Know About the Delta Variant

[2] What is surveillance testing program?

[3] More businesses are mandating COVID-19 vaccines. Is that legal?