Kamin: The Delta Variant’s Implications for Work Comp| Staff Compensation Information

Of John P. Fireplace

Tuesday, August 10, 2021 | 0

The emergence of the Delta variant of COVID-19 is having an impact on California that trade associations may want to be aware of.

John P. Fireplace

California’s success in rapidly vaccinating more than 63% of its population by August 3 celebrated the end of the pandemic, but the advent of the highly contagious Delta variant taught us not to celebrate just yet.

What does this mean from an employee compensation perspective for California’s employers and employees?

Employer mandates

First, we can expect more employer mandates for their employees to get vaccinated. The list of employers who will prescribe the vaccine (with exceptions) includes the NFL, Walmart, and Disney, to name a few. In the meantime, the state of California and the city of Los Angeles require that employees either get vaccinated or undergo weekly tests and regular mask wear.

Speaking of masks, it’s also worth noting that the Centers for Disease Control and Prevention has updated their recommendations for vaccinated and unvaccinated people on how to wear masks on airplanes, buses, trains, and other public transport. Cal / OSHA rules and regulations still require employers to provide unvaccinated employees with masks when they ask. And Los Angeles County has updated its obligation for all residents to wear masks indoors, even if they are vaccinated.

Customer Restrictions

Second, expect more companies to introduce new COVID protections to their customers. For example, restaurants in the greater LA area now require their customers to provide proof of vaccination or negative test results. This development surprised even this vaccination advocate blogger, and I know at least one objector who may see their dining options decline if they don’t get the vaccination.

As long as the Delta variant is still widespread, I wouldn’t be surprised if these companies continue to need masks regardless of local government regulations.

Politics aside, this is likely a good move for the hardworking staff at these restaurants and shows that management takes occupational safety seriously.

FDA approval

Third, political pressure appears to be mounting on the Food and Drug Administration to at least formally approve the Pfizer vaccine. Why Pfizer? Apparently it was one of the first to apply for full FDA approval. The motivation is to convince unvaccinated people who argue that “none of the vaccines have full FDA approval” and refuse to get the vaccine.

While we’re on this topic, it seems that booster shots for the elderly and those at risk with pre-existing conditions are on the way. While the booster is still in development, public health officials in Northern California are warning those already vaccinated not to sneak a self-prescribed “third shot” from their local vaccination centers.

Lessons from Provincetown, Mass.

Fourth, there are several positive findings from the Provincetown, Massachusetts outbreak that are proving to be an excellent case study. The small Massachusetts beach community saw thousands of beach goers flood its bars, shops, and beaches on the weekend of July 4th, only to suffer an outbreak of 900 cases.

Dr. Ashish Jha, dean of Brown University School of Public Health, has stated on ABC News and Twitter that the outbreak is evidence that the vaccine is working. He cited the fact that only four vaccinated people ended up in the hospital, suggesting that vaccines prevent serious illness.

Pfizer and Moderna’s vaccines also prevent 75% -85% of symptomatic infections, suggesting the initial case numbers would have been about five times higher, Jha said. In other words, if no one had been vaccinated, it would have caused 4,500 infections and possibly a larger regional outbreak. By August 3, the outbreak had dipped to 59 active cases.

Applying the lessons to California comp

Fifth, let’s learn a lesson from the Provincetown outbreak and analyze a hypothetical outbreak of similar magnitude in a California beach town. Let’s look at this type of event through the lens of SB 1159, the bill that created a suspicion of an outbreak for companies with five or more employees. For the suspected outbreak to apply and for COVID to be work-related, employers with 100 or fewer employees on a construction site must have at least four positive tests within 14 days.

It is foreseeable that a Provincetown-type event could create enough cases for small businesses with five or more employees to experience COVID-19 outbreaks and apply the outbreak suspicion.

One could ask: But what if all employees were vaccinated? These vaccinated workers could still get sick, but far less likely to require serious medical treatment. So while you may have a suspicion of an SB 1159 outbreak, hopefully for vaccinated employees the infections would be relatively uneventful and would not require serious medical attention.

That’s a fair assumption, but if only four of the 900 infections in Provincetown required hospitalization, it suggests that severe cases occurred at a very low rate of 0.44%. In other words, severe cases occurred at a rate well under 1%.

Don’t forget now: SB 1159 has also made a different assumption for first aiders. It is also foreseeable that if a Provincetown-type event were to take place in California, police, fire fighters and health workers could become infected at work and trigger the suspicion of the first aider.

Even at a very low severity level of 0.44%, there is the potential for some serious cases in vaccinated and unvaccinated workers with sufficient cases. This would follow the same trend that many of our customers have seen over the past year, as the experts had to reduce a high number of COVID damage to a few long distance damage.

So if you have an outbreak we’d like to reiterate that the experts continue to pursue the same path of discovery and make aggressive discoveries, including:

• Obtaining positive test results.
• Finding sources of non-industrial causality.
• Obtaining first treatment reports as well as all treatment reports.
• Check the social media accounts.
• If the case is still pending, contact a qualified medical reviewer in pulmonary-internal.

Why is this necessary? Taking the Provincetown outbreak as an example, it would be foreseeable that a person could work in a retail store from 9 a.m. to 5 p.m. only to walk into a crowded bar after work and get a non-industrial case of COVID from his drinking pals. Alternatively, the same retail worker could have his friends come to town to stay with him near the beaches and bars and get a non-industrial case of COVID through visiting friends and family.

graduation

A few months ago we hoped to leave the COVID pandemic behind us. That is clearly no longer the case. While we’re all sick of COVID-19, it pays to continue to watch how this pandemic unfolds as the claims will hang around, at least for the immediate future.

John P. Kamin is a worker’s compensation attorney and partner at Bradford & Barthel’s Woodland Hills facility. He is the former legal editor of WorkCompCentral. This entry from the Bradford & Barthel blog is published with permission.