Fall always leads to one of my favorite holidays — Halloween. Scary, spooky things abound in stores, kids (and adults) get ready for trick-or-treating, and we typically get unnecessary horror movie sequels that aren't quite as good as the original. In the absence world, we are also getting a sequel that no one wanted — and hopefully it is not as bad as the original. I am talking about the dreaded return of COVID.

COVID on the rise

According to the Centers for Disease Control (CDC), reported cases of COVID-19 (and its variants) are on the rise again. The good news is that in August 2023, hospitalizations were about 25% of what they were in August of 2022. This does not include the upcoming influenza and respiratory syncyrial virus (RSV) season which traditionally drives hospitalization visits. Sedgwick’s data shows that claims since July 2023 have risen, but they are still below what we saw a year ago and well below what occurred in 2020 and 2021. However, we are starting to see cities and school districts move back to virtual or reinstate mask mandates.

Next steps for employers

This presents an opportunity for employers to review the COVID policies that may have been in place previously and update them, as necessary. If COVID cases continue to increase, it is better to be proactive with protocols in place than be reactive in addressing issues after the fact.

• Review your sick time policies to ensure that they still allow for COVID-related illnesses. The CDC has updated its guidelines as it relates to isolation for COVID. If an employee tests positive, regardless of vaccination status, they recommend isolation for five calendar days. Certain states and cities like Colorado and San Francisco can issue new public health emergencies which could provide up to 80 hours of paid time off (please note that as of the date of this article, no such declarations are in place). This review process should also include ensuring your call-in policies are updated to manage any COVID claims and the documentation that the employer may require (i.e., positive COVID test results).
• Update vaccination policies. The Equal Employment Opportunity Commission (EEOC) has made it clear that employers can mandate employees who are in the office to be vaccinated — whether it is the baseline treatment or requirements surrounding booster shots. However, they also need to allow for exemptions that deal with medical and religious objections. Employers need to ensure that any exemption process protects an employee’s rights under ADA by not requiring them to disclose conditions that they may not want their employer to be aware of, but still allow them to evaluate the request. Employers should always consult with counsel if they are unsure how to address any concerns over the accommodation process.
• Determine rules for masking in the workplace. If an employer decides to implement a mask policy, they need to ensure that their process allows for employees who have disabilities (as defined under the ADA) the ability to request an accommodation from the policy. Many healthcare systems require visitors as well as employees to mask up this time of year due to RSV and influenza, and should also make sure that their policies address individuals who are asking for accommodations to their facilities polices.
• Educate employees on their benefits as it relates to disability and leaves of absence. When COVID first hit in 2020, many disability plans (including state statutory programs) allowed COVID to be a day one benefit given the 14-day isolation period. Since that time, plans have gone back to their more traditional structure of requiring a minimum elimination period before benefits pay out. Given that the isolation recommendation is only five days, this means that employees may not be eligible under some disability benefit plans. Similarly, FMLA was expanded under the Families First Coronavirus Response Act (FFCRA) to allow for paid COVID and reason to use FMLA. With the sunset of the FFCRA, FMLA can recognize COVID as a serious health condition for the employee or a qualifying family member but no longer covers employees for reasons like school closures.

While we are seeing an uptick in COVID cases, the data is thankfully suggesting this sequel will not be as widespread as the original. Let's hope any future releases are direct-to-video so we can focus on the truly scary things in October...like facing trick-or-treaters when you've run out of candy before 8:00 pm.