Workers Continue to Face COVID Safety Issues with New Omicron Variant

The Omicron variant of the coronavirus is spreading quickly throughout California—and the entire nation. The next several weeks "are absolutely critical" to help ease the surge, according to Dr. Grant Colfax, San Francisco's Director of Health. According to Colfax, we can limit the damage caused by this latest wave, but everyone needs to pitch in.

The 411 On Masks

Officials are recommending people use masks that are medical grade, such as N95, KN95 or KF94 masks, and not one that is old, loose or made of cloth.

The California Department of Public Health recommends that masks meet the following parameters:

• Two layers of tightly woven cotton with another layer of nonwoven fabric.
• Have nose wires so they can be tightened around the nose.
• Have adjustable ear loops or straps to ensure a tighter fit.  

Experts are also urging people not go to an emergency room for a COVID test or "minor" complaints that could be handled by their primary doctor.

With Workers in Mind

The Omicron surge, which arose quickly in December and into January, is expected to peak at the end of the month or in early February, according to the University of Washington's Institute for Health Metrics and Evaluation.

So, what does that mean for the state's "essential" employees, including everyone from those working in hospitals and other healthcare facilities to plumbers, electricians, exterminators, grocery store clerks and many more?

California's Senate Bill (SB) 95, which was signed into law in 2020, amends existing Workers' Compensation laws by creating a "disputable presumption" that an employee's sickness or death due to COVID-19 on or after July 6, 2020 through January 1, 2023 is presumed to have arisen out of and in the course and scope of employment for Workers' Compensation purposes.

You may still be able to pursue a Workers' Compensation case for work-related COVID-19 exposure if there is evidence that you were exposed on the job, even if the presumption law does not apply. For instance, if "frontline" workers—peace officers, firefighters, emergency medical technicians, nurses, home healthcare workers and in-home supportive services workers—test positive within 14 days of being on the job, the disease is presumed to be caused by the job.  Also, when it comes to "frontline workers," any COVID claim they file that is not rejected within a 30-day window is considered to be work related unless there is cause to rebut it that could only be discovered after the 30-day period. This is different from California's long-standing 90-day delay period for an employer to determine if an injury is work related.
In the case of non-frontline employees, they will be presumed to have contracted COVID-19 at work if there was an outbreak at the place of employment. An outbreak is defined by law in one of the following ways:

• If four or more workers contract the virus within a 14-day period at a workplace with five to 100 employees.
• Four percent of employees contract the virus in a 14-day period at a workplace with more than 100 employees.
• The specific place of employment is closed by the government based on an outbreak.

SB 95 "encourages employers to comply with all local health directives and guidance concerning safely reopening businesses to reduce risk of exposure and mitigate outbreaks in the workplace," according to California's Department of Industrial Relations.

A Matter of Definition

But, what if your workplace is your home as is the case for many people due to COVID-19? "When your home is your office, there is plenty of support for the notion that many injuries that happen at home are covered by California's Workers' Compensation system," says Richard Felton, a partner in the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK).

The pandemic begs the question of what is considered a workplace injury during work hours when there is no time set that limits the hours that one works from home. But, this is only one part of the equation. For frontline employees—those who aren't able to work from home—the Omicron variant is a stark reminder of the risks they have faced for two years, and the major role workplaces play in the spread of COVID.

"The Omicron variant is considered by most experts to be more transmissible yet less severe than the Delta variant, but it is just too early to tell," says Felton. "So, being proactive and taking precautions on and off the job is the best way to stay as safe as possible.

"At GEK, we are always here to answer any of your questions concerning possible contraction of COVID-19 on the job or any other workplace injury or illness."

For more information about your Workers' Compensation rights, call us at 213-739-7000 or click here.