COVID updates: EEOC, Experience Modifiers, Cal/OSHA updates, many studies

EEOC: Mandatory workplace covid-19 testing must be justified

Going forward, employers must show that coronavirus testing is job-related and consistent with business necessity, as defined by the Americans with Disabilities Act (ADA), the EEOC announced in a July 12 guidance update. Until now, worksite COVID-19 testing was permitted without any required justification or assessment.

The revision to A.6 makes clear that employers need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. The agency provided several possible factors to consider when making an assessment, including:

• The level of community transmission
• The vaccination status of employees
• The degree of breakthrough infections of vaccinated workers
• The transmissibility of current variants
• The possible severity of illness from a current variant
• Contacts employees may have with others during their work
• The potential impact on operations if an employee enters the workplace with COVID-19

“This change is not meant to suggest that such testing is or is not warranted,” the EEOC said. “Rather, the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted.” The agency cautions that the CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing and it behooves employers to check for updates before implementing a COVID-19 testing protocol.

A.7 was also revised, indicating that antibody testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. A.5 which deals with employees returning to the workplace after being out with COVID was updated as was C.1, C.4, C.5 under the hiring section, and D.7 and D.8 under the disability and reasonable accommodation section.

COVID exclusion from Experience Mod

The proposed amendments to sunset the exclusion of COVID-19 claims in the California Workers’ Compensation Experience Rating Plan – 1995 (ERP) were not approved. This means that until at least 10/1/23, any new C-19 claims will continue to be excluded from the mod calculation. It is expected that NCCI and other independent bureaus will announce their decisions soon.

Online dialogue on workers and long-COVID launched

To learn more about long-COVID, the Surgeon General, DOL, and CDC have launched Understanding and Addressing the Workplace Challenges Related to Long COVID. This is a virtual, crowdsourced dialogue to gather information on:

• Challenges workers face as they cope with symptoms
• Employer support for workers with long COVID
• Ways to inform workers and employers about long COVID
• Organizations to engage to develop solutions for those affected by long COVID

COVID claims rising in California and Florida

The California Workers’ Compensation Institute reported that the number of claims for COVID-19 nearly tripled in May. It projects a total of 7,911 claims for May, 2,524 for April, and 1,344 for March and while trending upward it is significantly below the all-time high of 55,248 in January 2022. CWCI reports 269,756 COVID-19 claims have been filed since March 2020.

Florida workers filed 368 claims for COVID-19 in May, up from 234 in April and 105 in March, according to the latest report from the Division of Workers’ Compensation. A total of 72,680 claims for COVID-19 have been filed since the start of the pandemic with total paid costs exceeding $197.7 million. The DWC reports benefit payments were less than $5,000 for 68,823 of those claims.

Cal/OSHA updates FAQs to address new definition of close contact

With CDPH’s new definition of close contacts now focused on “shared indoor airspace” rather than the 6 feet/15-minute threshold, Cal/OSHA has updated its FAQs to assist in interpreting the various ETS requirements affected by the new definition. The definitions section addresses what is a shared indoor airspace in the context of the ETS, and how an employer should determine who has had a close contact.

Studies

High COVID-19 mortality rates among labor, retail and service workers

Study: Joint Effects of Socioeconomic Position, Race/Ethnicity, and Gender on COVID-19 Mortality among Working-Age Adults in the United States – University of South Florida

Findings: COVID-19 mortality rates among adults with lower levels of education who worked in the labor, service, and retail industries were nearly five times higher than other groups in 2020. When including gender, race, and ethnicity groups, the biggest disparity was among low socioeconomic position (SEP) white women, whose mortality rate was 4.95 times higher than high SEP white women. Low SEP Hispanic and Black men had the highest mortality rates, at 178 and 127.1 deaths per 100,000. Low socioeconomic position adults had no education beyond high school, while medium SEP was defined as at least one year of college and high SEP as a minimum of a bachelor’s degree.

Takeaway: The working class experiences disproportionate exposure risks and an increased burden of disease. Jobs that require on-site attendance and prolonged close contact with others were primary drivers of disparities in COVID-19 mortality rates. Actions are needed to further protect these vulnerable workers.

Nonfatal illnesses in the construction industry jumped 81.4% during the first year of the COVID-19

Study: Impact of COVID-19 on the construction industry: 2 years in review – CPWR

Findings: The rate of nonfatal illnesses in the construction industry jumped 81.4 percent during the first year of the COVID-19 pandemic compared with the annual average for the previous four years. Overall, around 8,700 nonfatal illnesses were recorded in 2020, compared with an annual average of 4,600 over the previous four years. The number of nonfatal respiratory illnesses increased to 5,300 in 2020 from an annual average of 425 from 2016 to 2019 – a 1,183% increase. The vaccination rate among construction and extraction workers (52.4 percent) trailed all others and lagged far behind the percentage for all industries, which was 81.7 percent. The report also examines levels of employment and OSHA citations.

Takeaway: The dramatic increase in nonfatal respiratory illnesses among construction workers highlights the pandemic’s impact on construction worker safety and health and the need to overcome the barriers to vaccinations.

First responders more likely to get COVID, less likely to be vaccinated

Studies: Incidence of SARS-CoV-2 Infection Among Health Care Personnel, First Responders, and Other Essential Workers During a Prevaccination COVID-19 Surge in Arizona – University of Arizona and COVID-19 Vaccination Perspectives and Illnesses Among Law Enforcement Officers, Firefighters, and Other First Responders in the US, January to September 2021

Findings: Before vaccine availability, first responders had a significantly higher incidence of COVID infection than health care personnel (twice the incidence of infection), even after controlling for sociodemographic characteristics and underlying health and exposure indicators. While first responders have had a higher incidence of infections, the vaccination uptake has been considerably low, especially in comparison to other high-risk groups such as healthcare workers.

Takeaway: Given the frequent contact with each other and with the public and the high rates of infection, the safety challenges for first responders warrant greater public health attention and research. Furthermore, the low trust in government among first responders suggests a need to leverage trusted nongovernmental sources to increase vaccination rates.

Farm and food production employers had most violations of COVID-19 guidelines

Study: Farm Labor, Rural Health, Occupational Health and Safety, COVID-19 Farmworker Study – California Institute for Rural Studies

Findings: Cal/OSHA reports of COVID-19-related occupational health and safety regulations from April 2020 – August 2021 indicate California food production employers had four times more citations and fines for violating COVID-19 guidelines than employers in all other California industries combined. Though farms and food companies had the most violations of all the industries, they effectively utilized the judicial and appeals process to reduce their penalties – the average penalty was $22,473.

Takeaway: The report describes food production workers as those working in meat packing, dairy operations, and agriculture – primarily Black, Latino, and Indigenous people, often undocumented immigrants. Food workers have the lowest median wage of any workforce and work in an industry that has some of the highest rates of health and safety violations. Actions are needed to further protect these vulnerable workers.

RAND’s latest study expected to guide the California legislature

Study: COVID-19’s Impacts on California’s Workers’ Compensation System: Evaluating the Effects of Senate Bill 1159 (May 2022) – Rand Corporation

Findings: In this second report dealing with how COVID has affected the workers’ comp system, Rand concluded the presumptions helped workers obtain benefits for work-related illness from the Workers’ Compensation system, promoting broad coverage of workers and health conditions. Shortened timelines and quicker initial decisions did not appear to meaningfully assist workers and were challenging for employers. This is likely because workers were able to get paid leave and access medical care through other policies. Other federal and state policies that were in effect during the study period likely did more than SB1159 to support the system’s goals of protecting workers from medical spending and risk of lost income. Many of these policies and actions have ended, however, suggesting that workers’ comp may be more important to workers in the future.

Takeaway: Workers’ compensation benefits for permanent disability or death could be extremely important to workers who experience the worst outcomes from COVID-19. Additionally, workers’ compensation benefits may prove to be critical for workers who develop “long COVID”. Because so much remains unknown about COVID-19, further research is critical to better understand how COVID-19 exposure rates, the volume of COVID-19 claims, and claim outcomes vary across California by industry and occupation.

Fewer employers asking job applicants to be vaccinated

Study: Vaccine requirements in job ads are declining – Indeed Hiring Lab

Findings: The share of job ads requiring vaccination have dropped across all the states, but there’s still a lot of state-to-state fluctuation. For example, 11.7 percent of job ads in Oregon list vaccination as a prerequisite, the largest share of any state, according to Indeed and at the opposite end, only 2.2 percent of job posts in Montana include mention of vaccination. The overall average dropped from 7.1 percent in March to 5.9 percent on June 30.

Takeaway: A metro’s political leaning is a significant factor in whether job postings on Indeed specify required vaccination. Large, blue metros lead in the share of job postings advertising required vaccination. Surprisingly postings in occupational sectors with higher shares of remote work are more than three times as likely to advertise required vaccination as postings for in-person sectors. Some employers may ask for proof of vaccination at a later stage of the hiring process and exclude it from the posting to maximize response.