The Holidays – and the Flu/COVID – Are Coming, and the CDC Offers Tips on Reducing Risk (and We Offer Tips to Employers).

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In light of the upcoming holiday season, involving an increase in indoor social events, the Centers for Disease Control and Prevention has issued guidance, Reduce Your Risk from Respiratory Viruses This Holiday Season. Although not specific to the workplace, employers may wish to encourage/remind employees of basic precautions to reduce the risk of infection in the workplace, including the following:

  • Immunizations: The CDC encourages COVID and flu vaccines for everyone over the age of 6 months, and RSV vaccines for pregnant parents during weeks 32-36 of pregnancy, as well as older adults (age 60 for those at high risk of severe RSV and age 75 for everyone else).

We note that, unless prohibited by state or local law, employers may mandate immunizations, subject to exceptions as reasonable accommodations for disabilities or religious beliefs under the Americans with Disabilities Act (ADA) and Title VII. However, as the COVID pandemic highlighted, such mandates can be extremely controversial. Nonetheless, employers can certainly encourage – and even incentivize – employees to become vaccinated, and provide resources or support (such as paid leave) for vaccinations.

  • Testing and treatment: The CDC states that U.S. households may receive 4 free COVID tests (available to order here). It also recommends that symptomatic individuals at higher risk of developing severe illness talk to their healthcare provider about testing and treatment options. It notes that antiviral treatments for COVID and the flu can lessen symptoms and shorten the illness, and should be started as soon as possible after symptoms occur.

Whether employers may require employees to be tested for COVID or the flu is governed by the ADA (and analogous state laws). Under the ADA, employers may only require medical tests where they are job-related and consistent with business necessity. While requiring such testing of a symptomatic employee, in order to try to prevent workplace spread, might meet that standard, we also suggest that employers can take steps short of testing – such as allowing symptomatic employees to work from home where possible, encouraging employees to use available sick leave or PTO, or providing unpaid leave for treatment and recovery. It may also be possible for employers to require symptomatic employees to wear masks, unless there are state or local laws that prohibit mask mandates. Employer may certainly encourage the use of masks (and even make them available) or allow employees who prefer to wear masks to do so.

  • Everyday prevention steps: The CDC recommends the following actions: staying home and away from others when sick; covering coughs and sneezes; improving ventilation; and washing hands often.

Employers can post reminders about covering coughs and sneezes and handwashing, and make handwashing facilities and hand sanitizers available. They can also take steps to improve ventilation in the workplace (OSHA previously released COVID-19 Guidance on Ventilation in the Workplace that may still be useful). And, as noted above, employers can encourage workers to stay home when sick, by providing remote work opportunities or leave.