by Travis Vance / Fisher Phillips
The COVID-19 pandemic has brought more workplace law challenges over the past six months or so than many employers will see in a lifetime. From changing directives on wearing masks, determining what to do when an employee is ill with COVID-19, and tracking the hours of employees working at home, employers have faced myriad issues never before addressed. Making matters worse, the start of fall, which typically brings the joys of football, foliage, and falling temperatures, will present likely the greatest COVID-19 pandemic challenge yet: the onset of flu season.
Most of the pandemic has taken place during warmer weather. Since mid-March, COVID-19 has been the primary illness to consider when screening employees prior to their shift, determining if they should be isolated at home, or removing them from the workplace because of potential exposure. During flu season, however, you will be faced with the difficult task of determining if a sick employee has the flu or COVID-19, and what to do once that determination is made. To meet this unprecedented challenge, you will need to develop skills in several new areas:
• Understanding the differences between the two illnesses;
• Knowing what CDC guidelines and legal requirements are triggered if an employee has either illness; and
• Determining the four key steps to take to minimize the presence of either illness in the workplace.
What are the differences between COVID-19 and the flu?
Distinguishing the symptoms of COVID-19 and the flu is a difficult task. Even the Centers for Disease Control and Prevention (CDC) concedes that there’s not much difference amongst the physical signs of the two illnesses. In its guidance on this issue, the CDC outlines the few differences between the illnesses, which are summarized below and will be helpful to understand when developing policies regarding screening for symptoms and requiring employees to remain at home if sick.
Spread of illness
The flu can spread from person-to-person between people who are in close contact with one another (within about six feet). It is spread mainly by droplets made when people with the illness cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. It may also be possible that a person can get infected by physical human contact (e.g. shaking hands) or by touching a surface or object that has virus on it and then touching their own mouth, nose or possibly their eyes.
COVID-19 spreads the same as the flu. However, COVID-19 is more contagious among certain populations and age groups than flu. Also, it has been observed to have more superspreading events than the flu. This means the virus that causes COVID-19 can quickly and easily spread to a lot of people and result in continuous spreading among people as time progresses.
Both flu virus and the virus that causes COVID-19 may be spread to others by people before they begin showing symptoms, with very mild symptoms or who never developed symptoms (asymptomatic).
When symptoms begin to develop
Typically, a person develops flu symptoms anywhere from one to four days after infection. A person typically develops COVID-19 symptoms about five days after being infected, but symptoms can appear as early as two days after infection or as late as 14 days.
When it can be spread by an infected person
Most people with flu are contagious for about one day before they show symptoms. Older children and adults with flu appear to be most contagious during the initial three to four days of their illness but many remain contagious for about seven days. Infants and people with weakened immune systems can be contagious for even longer.
How long someone can spread the virus that causes COVID-19 is still under investigation. It’s possible for people to spread the COVID-19 virus for about two days before experiencing signs or symptoms and remain contagious for at least 10 days after signs or symptoms first appeared. If someone is asymptomatic or their symptoms go away, it’s possible to remain contagious for at least 10 days after testing positive for COVID-19.
What legal requirements are triggered by either illness?
Both CDC directives and a host of legal obligations kick in when you determine that a worker may have either the flu or COVID-19. They mainly require you to consider isolating and quarantining the worker in question (although some local requirements may also call for mandatory workforce notifications or state reporting; check with your legal counsel).
Isolating sick employees
Unlike the directives available for workplace cases of COVID-19, there are no specific CDC guidelines for screening employees to determine if they have the flu or for quarantining employees sick with the flu. The challenge for employers, given the similarities in symptoms between the illnesses, will be determining if an employee in fact has COVID-19 (and not the flu), and thus must be self-isolated for 10 days, or directly exposed to COVID-19 (and not the flu), and thus must be quarantined for 14 days.
As noted in our previous guidance, employees who are or are suspected to be sick with COVID-19 should be self-isolated at home. A confirmed case is an employee who tests positive for COVID-19. The CDC defines a probable case of COVID-19 as:
• A person meeting the clinical criteria AND epidemiologic evidence of COVID-19 with no confirmatory laboratory testing performed for COVID-19; or
• A person meeting presumptive laboratory evidence AND either a positive COVID-19 test OR epidemiologic evidence of COVID-19.
You should instruct an employee who is confirmed or suspected of having COVID-19, as defined above, to remain at home until released by a physician or public health official. If a doctor’s note releasing the employee is unavailable, follow the CDC guidelines on when an employee may discontinue self-isolation, which contain specific requirements dependent upon when and whether the employee exhibited symptoms. If an employee has the flu, they should remain at home until released by physician or until symptoms resolve.
Quarantine requirements for exposed employees
With respect to quarantining employees who worked near the infected worker, no such isolation is required for the flu. Under CDC guidance, you should notify all non-critical infrastructure workers who were directly exposed to the infected employee that they may have been exposed and send them home for 14 days to ensure the infection does not spread. While quarantined, you should instruct employees to self-monitor for symptoms, avoid contact with high-risk individuals, and seek medical attention if symptoms develop.
Employees who fall in the “6-15-48” zone of a confirmed or suspected COVID-19 case are considered to be directly exposed: those who worked within six feet for a prolonged period of time (15 minutes or more) with the infected employee during the 48-hour period before the onset of symptoms or, if asymptomatic, the 48-hour period prior to the administration of the infected employee’s COVID-19 test.
4 steps to minimize either illness in the workplace
You can take proactive steps to ensure you minimize the chances of either illness showing up at your workplace this coming fall and winter. Here are the four best steps you can take to protect your organization.
Educate Workers And Screen All Employees For Signs Of Either Illness
Continue to educate employees about the symptoms of COVID-19 and explain their similarities with the flu. Ask all workers to remain at home if they are sick. Before each shift, and in compliance with any state or local order concerning screening, have employees verify that they have not had flu or COVID-19 like symptoms in the preceding 24 hours. Send home all employees who are sick and ask them to seek medical attention.
Clean And Disinfect Your Workplace
Cleaning and disinfecting your workplace is never a bad thing, either during or after a pandemic. If you have increased your facility’s cleaning schedule during the pandemic, maintain the current number of cleanings. To protect your employees, ensure commonly touched surfaces, such as door knobs, buttons, restrooms, and break rooms, are frequently cleaned and sanitized. If using cleaners other than household cleaners with more frequency or at a strength greater than an employee would use at home, ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication standard.
Practice Social Distancing
Throughout the pandemic, the CDC has encouraged all people to practice social or physical distancing in order to prevent spreading COVID-19. Spread of the virus occurs when droplets from an infected person are launched into the air as they cough, sneeze, or talk, and land in the mouths or noses of people nearby. Thus, staying away from other people slows the spread of the virus. Doing tasks outside, where the air is better ventilated, helps prevent contraction of the illness. However, with cooler weather arriving across the country, more people will remain inside and make social distancing more difficult to achieve. To the extent possible, have employees work from home, and stagger shift start times, lunch breaks, and other times when employees will be in your facility in order to cut down on the number of individuals at the worksite. Limit capacity in conference rooms, break rooms, offices, and restrooms. Mark hallways and corridors as one way to limit “head-on” pedestrian traffic. Work with your landlord or HVAC contractor to increase the number of air exchanges at your facility and install air filters where possible.
Have Your Employees Take The Flu Vaccine
To decrease the number of sick individuals in your workplace, encourage or mandate employees to have a flu shot. The CDC recommends that everyone six months and older should get a flu vaccine every season with rare exceptions. Vaccination is particularly important for people who are at high risk of serious complications from influenza.
In the absence of a state or local law to the contrary, employers may require employees to get vaccinations to protect them from contracting and spreading the flu (read our detailed article focusing on flu vaccines here, and visit our Vaccine Resource Center For Employers).
Where otherwise permitted, however, your right to require flu shots is not unlimited. Specifically, the Equal Employment Opportunity Commission (EEOC) has repeatedly emphasized that, even during a pandemic, an employee may be entitled to an exemption from mandatory flu shot requirements based on an ADA-covered disability. Likewise, an employee may be exempted from the requirement if taking the shot would violate their sincerely held religious beliefs, practices or observances. In either case, you must engage in and document an interactive exchange with the employee to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety.
This a constantly evolving area, with new guidance being issued nearly every day. Fisher Phillips continues to monitor the rapidly developing COVID-19 situation and provides updated information as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information.