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Employers, vaccines, and Delta: Preparing to re-open safely

Employers, vaccines, and Delta: Preparing to re-open safely

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The Delta variant of the COVID-19 virus was primarily responsible for the surge of cases in India and is rapidly spreading worldwide. The CDC estimates that the highly infectious Delta variant is responsible for 82.2% of new coronavirus infections in the US. Employers now face numerous challenges over what they can do to keep the workplace safe.

Pandemic of the unvaccinated

It isn’t news that vaccines are critical in bringing the pandemic under control. Vaccinated individuals are three times less likely to catch COVID-19 and ten times less likely to die from it than the unvaccinated.

To date, vaccinated individuals experiencing breakthrough cases often are asymptomatic or have lighter cases that do not require hospitalization. But vaccinated individuals who test positive for this variant, can be just as contagious as unvaccinated individuals.

For the unvaccinated, this strain is highly transmissible and virulent, growing more rapidly and in greater levels in the respiratory tract. Thus, those who contract the virus are shown to get sicker quicker and are twice as likely to be hospitalized than those infected with other COVID-19 variants.

The new variant-driven surge plus breakthrough infections in fully immunized people, the coming of fall, and the persistence of people resisting the vaccine, has employers concerned.

What the CDC advises

In response to rising caseloads, the CDC has revised its guidelines. On July 27 it recommended that people vaccinated against COVID-19 resume wearing masks in public indoor spaces in areas of substantial or high transmission.

The CDC also recommended that fully vaccinated people who have come into close contact with someone suspected or confirmed COVID-19 to be tested 3-5 days after exposure and to wear a mask in any public indoor setting for 14 days or until they receive a negative test result.

However, that guidance may change. Individuals who catch the Delta variant may also be infectious for 18 days instead of 13 days; experts expect the CDC to change quarantine periods to reflect the duration of this variant.

Rapidly shifting workplace safety guidelines

Federal, state and local workplace safety guidelines are changing rapidly. Several states and localities (i.e., Washington State, Oregon, and Santa Clara, California) require employers to determine the vaccination status of their employees. Employers in most locations generally can:

  • require periodic testing for unvaccinated individuals only
  • ask for vaccination status for all employees expected to return to the workplace
  • require mask wearing, social distancing and other mitigation measures either for all employees or only those who are unvaccinated

But employers do not have complete carte blanche to handle the issue as they see fit. Employers may not ask why an individual has not been vaccinated as that may violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

Those employers who require proof of vaccination must retain any such proof as a separate and confidential medical record under the ADA.

Employers that provide vaccinations themselves (i.e., onsite clinic) must meet requirements under the ADA and potentially under HIPAA. And in those limited circumstances where employees are unable to be vaccinated, employers would have to explore and follow the reasonable accommodation process under the ADA and/or Title VII.

Clear, positive vaccination messages

The best protection against this variant is to encourage employees to get vaccinated. Pfizer and Moderna vaccines both show efficacy against this variant. The efficacy rates for the Pfizer-BioNTech and Moderna vaccines appear to be between 42-96% effective against the Delta variant. The Johnson & Johnson /Janssen vaccine shows an efficacy rate of 67% against this variant.

Employers trying to keep the workplace safe have to attempt to overcome vaccine hesitancy among the workforce, rather than punish the unvaccinated. This will require creative approaches and messages that clearly speak to those whose minds can be changed. These can include:

  • Emphasizing that vaccines were paid for with taxpayer dollars and are available free to all people living in the U.S., regardless of insurance or immigration status
  • Providing accommodation for scheduling vaccinations and any side effects thereafter –  a number of state and local laws already require time off
  • Pointing people to reliable information from the CDC and other public health authorities
  • Encouraging leaders in the workplace to be vaccine champions

This fall – a perfect storm for COVID

As we head into the fall, the weather cools and people spend less time outside, the concern is that people won’t be able to socially distance indoors. For communities with low vaccination rates, we’re already seeing a surge in cases, with quite severe effects for individuals in these poorly vaccinated areas.

Employers will, as always, need to continue with their education efforts to allow vaccine confidence to grow, comply with state and local leave laws, and offer flexible sick leave options for employees who experience side effects after vaccination. Clear and open communications about what’s needed to stay healthy, and to protect the safety of everyone at work, is extremely important if we are going to beat back the dangers of this pandemic. Get in touch to learn how our healthcare business solutions can help guide your organization.