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January 10, 2021
Paustenbach and Asssociates
Despite calls from advisors and industry groups for the Trump Administration to enact executive orders preventing litigation against employers due to COVID-19 early in the pandemic, no such actions were taken in 2020. The Biden Administration also has not taken action to prevent litigation against employers due to COVID-19. While judiciary support for such executive measures was uncertain, many believed they would prevent filing of potentially millions of cases of questionable merit due to the relative impossibility of proving that any given exposure to the COVID-19 virus yielded a viral dose sufficient to cause an alleged COVID illness. It remains to be seen if an onslaught of litigation related to COVID-19 will present a burden to the court system due to a lack of executive action to prevent it. In lieu of federal action, numerous states have implemented policies to reduce pandemic-related business liabilities, though specific protections offered vary substantially across states, and legal cases continue to proliferate.
Litigation concerning COVID-19 typically relates to either business interruption insurance coverage or employee-employer disputes. With respect to the former, claims often involve alleged breach of contract, with employers arguing that their insurance policies covered business interruption due to the pandemic and that insurers wrongly denied coverage for premise closure and sanitation related expenses. With respect to the latter, approximately 26% of employee-employer disputes related to remote work and leave conflicts, with 25.6%, 22.2%, 7.3%, and 4.8% of conflicts relating to employment discrimination, retaliation or whistleblower complaints, wage and hour disputes, and wrongful discharge, respectively (Fisher Phillips, 2022). An additional 4.3%, 2.9%, and 2.4% of employee-employer disputes related to COVID-19 concerned vaccines, unsafe workplace conditions, and employer negligence/wrongful death, respectively (Fisher Phillips, 2022).
As with many elements of pandemic response, COVID-related litigation is continually evolving. It is expected that such litigation will expand in the coming months, and our team of scientists continues to stay abreast of related scientific and policy – related developments pertinent to these issues. Based on such knowledge, a brief overview of the COVID-19 illness and its causative virus, pandemic chronology, associated occupational guidelines, potential applications of risk assessment, and our expertise is presented below.
Background on SARS-CoV-2 and COVID-19
COVID-19 was first observed in a cluster of patients in Wuhan, China, around December 12, 2019. While the World Health Organization was informed of the cases of a novel pneumonia around December 31, 2019, the causative agent, a novel coronavirus, was not isolated until January 7, 2020, when the virus was established as 2019-nCov, later renamed to Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2). The virus spread rapidly, with the first case outside of China diagnosed in Thailand on January 13, 2020, and another case in Japan two days later. By January 31, 2020, the World Health Organization had declared COVID-19 a public health emergency (AJMC, 2021; CDC, 2021a; WHO, 2020c). The case count globally soared from 9,826 at the end of January 2020 to 83,652 by the end of February 2020 (WHO, 2020a, 2020b).
The first case of COVID-19 in the United States was confirmed by the Centers for Disease Control (CDC) in Washington State on January 21, 2020. Just over one week later, the United States announced plans to restrict air travel from China and impose 14-day quarantine periods for travelers. The United States then declared its own public health emergency on February 3, 2020, due to the rapid spread of the virus. On March 13, 2020, COVID-19 was declared a nationwide emergency in the United States, and two days later certain states began shutting down school systems, restaurants, and bars, among other non-essential businesses. California soon thereafter issued a mandatory stay-at-home order for all residents, requiring them to stay home except for essential needs or jobs. Social-distancing measures were also put into effect nationwide in an attempt to slow the spread of SARS-CoV-2. As of March 1, 2020, there were an estimated eight deaths attributable to COVID-19 in the United States; however, by the end of that month the death toll had climbed to 4,331 and by the end of April it had grown to 59,646 (CDC, 2021b). As of January 2022, the CDC reported a total of over 53 million cases of COVID-19 in the United States and over 820,000 COVID-attributable deaths (CDC, 2022a). Case counts reached pandemic highs in January 2022 due to spread of the highly transmissible Omicron variant of the virus, with a daily average of more than 500,000 cases as of January 4 (CDC, 2022a).
As a novel human beta-coronavirus, SARS-CoV-2 is similar in structure to the previously identified Severe Acute Respiratory Syndrome Coronavirus 1, which gained attention in 2003, and shares 90% of its amino acid identity with this coronavirus, differing only in structure in its spike protein (which is responsible for allowing the virus to enter into human cells and initiate infection) (Hu et al., 2021). Symptoms of COVID-19, which is defined as the disease caused by infection with SARS-CoV-2, can vary widely based on the overall health status of the host. Mild symptoms of COVID-19 are variable, but often include fever, fatigue, congestion of the nose, sore throat, cough, anosmia, and chest tightness lasting for four to seven days (CDC, 2021c). In severe cases, viral pneumonia can develop, which, if the course of disease continues to progress, can result in acute respiratory distress syndrome (ARDS) and multiorgan failure, possibly leading to death (Berlin et al., 2020).
SARS-CoV-2 is highly contagious and is known to be transmitted from person to person via respiratory droplets, with an incubation period lasting on average three to five days. Principal symptoms of COVID-19 are frequent sneezing and dry coughing, which generate viral plumes that transmit viral particles to nearby potential human hosts (Hu et al., 2021; Salian et al., 2021). Under optimal conditions of ambient temperature and humidity, aerosol droplets generated by the cough or sneeze of an infected individual can travel up to eight meters (Salian et al., 2021). Viral particles can also enter the eyes, nose, or mouth through touching with contaminated hands (CDC, 2021c). To a lesser extent, the virus can also be transmitted via other bodily fluids including feces, saliva, semen, blood, sweat, and tears, or vertically from mother to fetus in utero (Karia et al., 2020).
Shortly after SARS-CoV-2 was identified in early 2020, development of vaccines to combat the virus commenced, with early clinical trials starting by March 2020. Following continued trials through the summer and early fall of 2020, the FDA issued emergency use authorization (EUA) for the Pfizer-BioNTech COVID-19 vaccine on December 11, 2020, with subsequent EUAs for the Moderna and Johnson & Johnson/Janssen vaccines issued on December 18, 2020, and February 27, 2021, respectively (FDA, 2021). Though vaccine rollout began slowly, as of January 2022 approximately 62% of Americans were fully vaccinated against COVID-19 and approximately 74% of Americans had received at least one vaccine dose (CDC, 2022a). Vaccination rates vary dramatically across the United States, with implications for community resilience and workplace health policies. Prior to emergence of the Omicron variant of SARS-CoV-2 in late 2021, the prevalence of hospitalization among unvaccinated COVID-19 cases was more than 20 times higher than that for vaccinated individuals (Griffin et al., 2021). That is, even though so called “breakthrough” cases of COVID-19 may occur in vaccinated individuals, severity of illness and subsequent risk of hospitalization and death is reduced through vaccination (CDC, 2022b).
The Omicron variant of SARS-CoV-2 bypasses both vaccine and naturally-acquired immunity more readily than prior variants, yet vaccines are still shown to decrease risk of severe illness, hospitalization, and death (CDC, 2021d). Moreover, vaccine boosters, which were first recommended for susceptible populations by the CDC in September 2021 and later recommended for all vaccinated persons 16 years or older, are shown to yield greater than 80% efficacy against the Omicron variant (CDC, 2021e; Hogan et al., 2021). As of early January 2022, approximately 30% of fully vaccinated Americans had received a COVID-19 vaccine booster (CDC, 2022c).
Occupational Guidelines for SARS-CoV-2 Exposure Mitigation
Recommendations from United States federal agencies regarding mitigation of SARS-CoV-2 transmission in workplaces were, as with every other response to COVID-19, developed alongside the rapid spread of the virus. These regulations were thus prone to change and were limited by the logistical feasibilities of early 2020. This was clearly seen in the evolution of occupational mask recommendations or mandates. From late February through late March 2020, masks were not recommended for personal use by individuals who did not work in the healthcare fields or who had not had recent close contact with one or more individuals diagnosed with COVID-19 (Cramer, 2020; Netburn, 2020). The CDC specifically recommended throughout all of March 2020 that if an individual was not sick, they did not need to wear a facemask unless they were providing care for someone who was sick (CDC, 2020b). Beginning on April 3, 2020, the CDC changed its position and recommended that all Americans wear masks when outside of their homes (Cramer, 2020). Mask use was broadly recommended for all Americans until May 13, 2021, when the CDC stated that fully vaccinated persons could participate in indoor and outdoor social activities without masks. However, the CDC again recommended indoor masking for all individuals, regardless of vaccination status, on July 27, 2021, due to spread of the Delta variant of SARS-CoV-2.
In the occupational setting, the OSHA guidance on preparing workplaces for COVID-19, released on March 9, 2020, detailed that workers who were diagnosed with COVID-19 or were at a high risk of exposure (e.g., through direct interaction with confirmed COVID-19 cases during medical treatment) should wear masks or other PPE to mitigate risk of SARS-CoV-2 transmission (OSHA, 2020). It was recommended by OSHA that “… [w]orkers with medium exposure risk may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles,” but that face masks were only recommended for “… ill employees … until they [were] able to leave the workplace (i.e., for medical evaluation/care or to return home),” not for healthy employees (OSHA, 2020). However, this document also identified alternatives to approved PPE masks, should acquiring masks prove unfeasible (OSHA, 2020). Masks throughout this early stage of the pandemic were not yet considered mandatory for the general public or most employees in order to help limit the spread of the virus given the limitations in stock and the need to prioritize access to PPE for healthcare providers.
The OSHA Guidance document discussed above provided guidance and established occupational standards for protecting workers from SARS-CoV-2 and COVID-19. OSHA recommended that employers “… develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19”; this plan was advised to include considering and addressing the risks posed to different worksites and job tasks based on factors such as potential exposures to SARS-CoV-2 during work, non-occupational risk factors, the individual medical risk factors of workers, and controls needed to minimize those risk factors (OSHA, 2020). Workers were to be classified into four categories of potential exposure: very high, high, medium, and lower risk. Very high exposure was defined as a job “… with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures” which primarily affected healthcare workers, laboratory personnel handling specimens from COVID-19 patients, and morgue workers performing autopsies. It was recommended that very high and high risk jobs were to have a number of engineering controls (such as appropriate air-handling systems and isolation rooms for patients), administrative controls (such as policies to reduce exposure potential, enhanced medical monitoring of workers, and job-specific education and training), work practices (such as providing alcohol-based hand rubs), and PPE policies (such as mandating the use of gloves, a gown, a face shield, and a mask or respirator) implemented to limit exposure (OSHA, 2020).
However, most employments outside of the healthcare field would not have been considered high or very high-risk positions; instead, most employees would have been classified as having medium or lower exposure. Medium risk positions included “… those that require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients” including employments in schools, high-population-density work environments, and some high-volume retail settings. For medium exposure employees, the only recommended engineering controls employers were expected to implement were to “… [i]nstall physical barriers, such as clear plastic sneeze guards, where feasible.” The recommended administrative controls for medium exposure risk employees included “[c]onsider[ing] offering face masks to ill employees and customers to contain respiratory secretions until they are able leave the workplace”; to limit public face-to-face contact with employees and access to the worksites where appropriate; and to communicate the availability of medical screenings to workers. OSHA reported that medium exposure employees “… may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles” but that “PPE ensembles for workers in the medium exposure risk category will vary by work task, the results of the employer’s hazard assessment, and the types of exposures workers have on the job” (OSHA, 2020).
Lower exposure risk positions were recommended to have even fewer controls by OSHA in its guidance document. Lower exposure risk individuals were classified as “… those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2 nor frequent close contact with (i.e., within 6 feet of) the general public.” OSHA reported that “[a]dditional engineering controls are not recommended for workers in the lower exposure risk group.” The only administrative controls recommended to lower risk employees were to “… [m]onitor public health communications about COVID-19 recommendations and ensure that workers have access to that information” and to “[c]ollaborate with workers to designate effective means of communicating important COVID-19 information.” Additionally, it was indicated that “… [a]dditional PPE is not recommended for workers in the lower exposure risk group.” The conclusion to be drawn from this March 2020 OSHA Guidance framework is that the standards for employers varied on the relative risk posed at each work site, and during each job task. Outside of the healthcare field, strict use of PPE was not mandated. Instead, general basic infection prevention methods were recommended such as frequent hand washing, having employees stay home when sick, and “[m]aintain[ing] regular housekeeping practices …” (OSHA, 2020).
The CDC also published Interim Guidance for businesses to respond to COVID-19 in March and April of 2020 (CDC, 2020a, 2020b, 2020c). Through the end of March, as previously described, the guidance for general businesses did not include wearing masks or respirators (CDC, 2020b). As of the end of March 2020, the guidance for workplaces from the CDC included recommendations on reducing transmission among employees by encouraging sick employees to stay home, identifying exposure potentials in the workplace, and separating sick employees (CDC, 2020b). The CDC further recommended “… [c]onsider[ing] improving the engineering controls using the building ventilation system” (CDC, 2020b). Other recommendations included providing tissues and hand sanitizers to employees, performing routine environmental cleanings, and performing enhanced cleanings or disinfections when an employee was diagnosed with COVID-19 (CDC, 2020b).
OSHA has continually updated its guidance for mitigating SARS-CoV-2 transmission in workplaces throughout the pandemic. The Administration’s most recent guidance document was updated on August 13, 2021 (OSHA, 2021a). As of late 2021, OSHA’s key recommendations for mitigation of SARS-CoV-2 transmission included masking in indoor public settings in regions with “substantial or high transmission,” mask use by individuals with comorbidities that put them at increased risk of severe disease or by those who are not fully vaccinated, and testing three to five days after known exposure to a confirmed COVID-19 case. Additionally, OSHA recommended that employees get vaccinated against COVID-19, practice good personal hygiene, and participate in frequent testing. For employers, OSHA recommended that employers facilitate employee vaccination, instruct symptomatic or exposed workers to stay home from work, implement social distancing protocols, provide workers with face coverings, train workers about basic COVID-19 facts, suggest or require vaccination and face coverings for visitors and guests in public-facing workplaces, maintain or enhance ventilation systems, perform routine cleaning and disinfection, record and report COVID-19 infections and deaths, implement anonymous reporting procedures for employees to voice concerns about COVID, and adhere to other applicable OSHA guidelines, such as those for respiratory, sanitation, and bloodborne pathogens (OSHA, 2021a).
More recently, the CDC shortened the recommended isolation period for those who test positive for SARS-CoV-2 from 10 to five days as of December 27, 2021, if symptoms were resolving at five days. The Agency recommended that positive individuals wear masks when in public for an additional five days following isolation (CDC, 2021f).
On November 5, 2021, OSHA issued an emergency temporary standard (ETS) wherein employers with greater than 100 employees must require employees to be fully vaccinated against COVID-19 or wear masks indoors and undergo weekly virus testing (OSHA, 2021b). While the U.S. Court of Appeals for the Fifth Circuit issued a stay on this regulation on November 6, 2021, a December 17, 2021, ruling by the Sixth Circuit reversed the stay (Sixth Circuit, 2021). As such, unless the U.S. Supreme Court intervenes, enforcement of all elements of the vaccination and testing requirements will commence on February 9, 2022. The Supreme Court is scheduled to hear arguments in the matter on January 7, 2022.
COVID-19 and Risk Assessment
Based on the above, the principles of risk assessment can be applied to both proactive risk management in occupational settings and analysis of how prior workplace risks may have contributed to COVID-19 illness among employees.
Proactive steps involve identification of how likely SARS-CoV-2 transmission is across work activities or settings, and what steps can be taken to mitigate transmission. This involves identification of who could transmit or become infected with the virus in occupational settings (e.g., workers, clients, guests, unaffiliated passersby), the likelihood of such persons being exposed to SARS-CoV-2 at a sufficient dose to yield disease, potential comorbidities that would predispose exposed workers or others to severe COVID-19 illness, and the relative importance of different work activities to essential business function. From this, controls that reduce potential transmission are identified. From most to least effective, these could include elimination of potential exposure (e.g., working from home), substitution of the potential hazard (tangentially, through requiring vaccination among workers), engineering controls (e.g., increased ventilation, physical barriers between workers), administrative controls (e.g., hygiene signage, enhanced social distancing recommendations), personal protective equipment (e.g., requiring employees to wear masks), and community protective equipment (e.g., requiring guests or clients to wear masks). Analysis of opportunities for mitigation of future occupational SARS-CoV-2 exposure risks, what strategies were previously implemented and when, and how COVID-19 response influenced and may continue to influence business success are important factors when considering both individual liability and business interruption claims, as well as healthy workplace initiatives.
Risk assessment is also salient when examining allegations that a person’s COVID-19 illness came from exposure to SARS-CoV-2 in a specific occupational or business interface setting. With few exceptions, it is nearly impossible to state that a specific case of COVID-19 was attributable to a singular exposure point. Transportation, retail, recreation, home, and other settings all present opportunities for exposure to SARS-CoV-2, and it is difficult to isolate the risks presented by each environment through time. That said, it is possible to retrospectively assess the risks of SARS-CoV-2 transmission posed by different settings. This could include analysis of work environments, such as how closely a person worked in proximity to other employees, frequency and proximity of public contact, what mitigation measures were in place (such as masking or enhanced ventilation), and social distancing or altered shift regimes, among other measures. Further, analysis of potential non-occupational exposures, such as social gathering attendance, shopping habits, volunteer activities, and recreational pursuits, along with the social and work tendencies of family members or housemates, can help inform an individual’s SARS-CoV-2 exposure profile.
In sum, risk assessment can clarify the hazards of SARS-CoV-2 transmission in occupational and non-occupational settings and contribute to implementation of future transmission mitigation strategies. Together with knowledge of how comorbidities affect COVID-19 outcomes, it can also provide insight into the potential for singular or combined SARS-CoV-2 exposures to result in severe disease.
How Can Paustenbach and Associates Help?
We have conducted several diverse analyses on COVID-19 issues and have consulted on COVID-19 matters in cases worth hundreds of millions or billions of dollars. This included personal injury and business interruption claims. We recognize that COVID-related litigation, while still a fluid issue at local, state, and federal levels, is likely to increase in the upcoming years. As we often recommend to clients, the best defense is a thorough use of scientific principles in assembling their defense (or offense with respect to insurance claims). The risk assessment methodology lends itself to this kind of analysis. We are happy to share our experience with clients who would benefit from this type of advice.
Please contact us for more information regarding Paustenbach and Associates’ capabilities: firstname.lastname@example.org
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