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The annual flu season typically descends upon the U.S. in October and November, and can last into May. According to CDC estimates,  the 2018-2019 flu season resulted in 35.5 million flu infections. Of those, 16.5 million people went to a medical provider, and 34,200 died. Many experts estimated that flu cost employers $17 billion in productivity during the 2018-2019 flu season. 

During the COVID-19 pandemic, the U.S. Centers for Disease Control and Prevention reported only 1,316 positive flu cases between September 2020 and January 2021. Experts attributed the sharp decline in flu cases to the nationwide measures taken to mitigate the spread of COVID-19—such as stay-at-home orders, the use of face coverings and the advent of social-distancing measures. Experts warn, however, that because many people were not exposed to the flu last season, they may be more susceptible to it this coming season. This is because learned immune responses to viruses can fade over time, and because many people may have skipped flu vaccinations last year given the stringent COVID-19 orders around the country. 

However, as the nation moves toward the annual flu season, employers may find themselves between a rock and hard place. The CDC has announced the COVID-19 Delta Variant is now the predominate strain of the virus in circulation in the United States, and rates of infection are on the rise. This strain is nearly twice as contagious as previous iterations of the virus. This is true even with respect to vaccinated individuals. However, vaccinated individuals are showing less severe symptoms and are less likely to require hospitalization than their unvaccinated counterparts, according to the CDC.

Given this reality, construction employers should take steps now to try to lessen the risk of their employees contracting the seasonal flu and the COVID-19 delta variant, or any other variant in circulation, this fall and winter. The steps set forth below will not only assist construction-industry employers in complying with the Occupational Safety and Health Administration, Mine Safety and Health Administration, the CDC and other federal, state and local regulations and guidelines, but will also aid construction employers in safely maintaining a healthy workforce to complete projects during these challenging times.  

Encourage Employee Vaccinations

Construction employers should encourage their employees to get COVID-19 and flu vaccinations. A study performed by the National Institute for Occupational Safety and Health and the National Center for Immunization and Respiratory Diseases revealed that construction-industry employees were some of the least likely people to get a flu shot with around 19% of polled participants reporting vaccination. Another study revealed that 46.4% of persons working in construction, oil and gas extraction or mining were hesitant to get the COVID-19 vaccination. 

Getting the COVID-19 and flu vaccines are simple ways to promote a healthful workplace, and to protect co-workers, family members and the general public. As such, construction employers may wish to promote voluntary vaccination by:

  • Offering to provide an on-site clinician to vaccinate interested employees. Some employers choose to pay for the service and the vaccines to promote participation;
  • Creating human resources and leave policies allowing employees to take an hour or two of paid time off to get a flu vaccine from a personal physician or out in the community;
  • Posting articles or literature about the importance and efficacy of the flu vaccine in the work area, breakrooms and on social media to educate employees; and
  • Encouraging supervisors, leads and other managerial personnel to set an example by getting vaccinated first.

Moreover, employers with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act if they provide paid-time-off from April 1, 2021 through Sept. 30, 2021, for employees to get the COVID-19 vaccine.

Follow COVID-Related Regulations and Guidelines

Employers should also continue to follow, and enforce, the ever-changing COVID-related regulations and guidelines published by OSHA, the CDC and applicable state and local health authorities. These guidelines may also generally prevent the spread of infectious, respiratory diseases such as the flu. Best practices will, at a minimum, likely include:

  • Creating and maintaining a COVID-19 prevention program;
  • Developing a lawful system for determining whether a worker is vaccinated or not so as to determine necessary protocols;
  • Requiring unvaccinated employees to wear face coverings in the workplace, and where social distancing is not feasible (this may include COVID-19 vaccinated individuals in high-transmission areas per CDC guidance); 
  • Providing additional water, soap and hand sanitizers so that employees can regularly wash and sanitize their hands;
  • Providing cleaning agents to sanitize workspaces, shared equipment and tools, and shared vehicle and equipment passenger cabs; 
  • Updating HazCom programs, trainings and safety data sheets to account for new sanitation chemicals in the workplace and more frequent exposures;
  • Requiring employees to social distance on jobsites where possible;
  • Having employees conduct daily health assessments for COVID-19 and flu-like symptoms, and potentially taking employee temperatures upon arrival to the office or a jobsite; 
  • Screening subcontractors and vendors who will be on-site;
  • Having policies in place to handle confirmed COVID-19 cases, including informing potential employees who may have been exposed to, or worked in closed proximity with, the infected individual;  
  • Considering letting any office and administrative personnel work remotely to prevent unnecessary exposure in an office-type setting. Where this is not feasible, consider constructing physical barriers and shields to prevent spread of the flu and COVID-19.

OSHA may view a lack of such efforts as failing to provide a safe and healthful workplace and cite construction employers under the OSH Act’s general duty clause for failure to have such protocols in place. Indeed, OSHA cited 408 workplaces (1,150 total citations issued) for COVID-19-related alleged violations between July 1, 2020 and April 12, 2021.

Plan and Prepare for Employees to Take Sick Leave

To prevent the spread of COVID-19 and the flu, construction employers will need to ensure that potentially-infected and infected employees stay home from work. Moreover, employers will want to adhere to CDC guidelines for COVID-positive employees to return to work after having been cleared by a physician.

Given these considerations, construction employers who have not already done so will need to consider revisions to their leave policies. Such revised policies need to provide flexible leave to account for COVID-19 illness and suspected illness, as well as the seasonal flu, which may mimic some of the signs and symptoms of COVID-19. In crafting these policies, construction employers must take into account the Family and Medical Leave Act, Family Medical Leave Expansion and Americans With Disabilities Act accommodation considerations that may arise when employees need to miss work or accrue excessive absences as a result of their own personal illness or the illness of a family member. Consulting with a seasoned human resource professional and/or trusted legal counsel is recommended given the ever-changing landscape related to employee sick leave during the COVID-19 pandemic

This fall and winter may bring considerable challenges due to the rise of the COVID-19 delta variant with the seasonal flu. With the easing of mask requirements, the seasonal flu may come back with a vengeance this year. Only time will tell.

Construction employers can put themselves in the best position to navigate these uncertain times by crafting and implementing appropriate policies to prevent the spread of COVID-19 and the flu, and by encouraging their employees to get vaccinated. 

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