‘Kraken’ COVID-19 Variant Threatens US Workforce

Workers may resist preventive measures

Allen Smith, J.D. By Allen Smith, J.D. January 9, 2023
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Microscopic image of the coronavirus

​With the rapid rise of a new variant of COVID-19, nicknamed "Kraken," employers should take precautionary measures in their workforces to prevent outbreaks—even though many employees are tired of thinking about COVID-19.

"Many Americans believe that COVID is over or don't care that it isn't," said Marjory Robertson, assistant vice president and senior counsel with Sun Life in Wellesley Hills, Mass.

Nonetheless, "employers should keep an eye on transmission in their community and in the workforce," noted Carrie Hoffman, an attorney with Foley & Lardner in Dallas.

Rapid Spread

The XBB.1.5 omicron variant, or Kraken, is spreading quickly, according to the U.S. Centers for Disease Control and Prevention (CDC). The revised projection for the number of cases caused by Kraken for the week ending Dec. 31, 2022, was 18 percent of U.S. coronavirus cases, followed by an increase to 28 percent for the week ending Jan. 6.

CDC's COVID-19 guidance  about how people can best protect themselves from serious illness remains the same, even as the new variant seems more transmissible. The CDC will continue to investigate the ways in which XBB.1.5 may be different from other omicron lineages.

"Based on experience, XBB and family will continue to increase as a proportion of cases until a variant that is more contagious displaces them," said Jeff Levin-Scherz, M.D., managing director and population health leader at WTW in Belmont, Mass. "The SARS CoV2 virus has proven to mutate much more rapidly than initially expected, and so we should expect a continuing parade of new variants."

He added that most experts predict there will be an increase in hospitalizations and deaths as a result of the new variant, although they expect Kraken will not be as severe as the original omicron surge a year ago.

"Information so far about the XBB.1.5 variant of COVID—Kraken—is that it is extremely contagious but, like other omicron variants, does not necessarily cause more serious disease," said Tracy Hamill, M.D., assistant vice president and medical director with Sun Life in the Portland, Maine metropolitan area.

The verdict is still out about this variant's ability to thwart the omicron bivalent vaccine, she said. "But it appears that even those who have had a recent infection or have had the vaccine can still become sick with this variant," she said.

Preventive Steps

Employers should continue to re-evaluate their pandemic plans in light of both COVID-19 and influenza, Levin-Scherz said.

"This year has been an especially bad year for the flu," he said, noting that employers can encourage employees to get their annual flu shot and COVID-19 bivalent booster.

Businesses can make handwashing and hand sanitizer readily available and, if feasible, can offer remote options for employees who are immunocompromised or have recently been exposed to COVID-19 or influenza.

Companies can also offer adequate paid time off to allow those who are ill not to come to work.

"Employers can also be sure that workplace ventilation is optimal, which decreases the likelihood of transmission of any respiratory virus," Levin-Scherz said.

Employers also can be mask friendly, Levin-Scherz said, although he added, "I don't see many employers outside of health care requiring masks at this point."

Hamill said that it is not necessarily time to require masks for all. But employers should assure people that wearing a mask is a good personal choice if around people for extended amounts of time or in crowded spaces.

Pushback

"Employers will meet with great resistance if they start requiring employees to wear masks again in the workplace," Robertson said. "It feels that much of America has moved on from feeling that COVID-19 warrants special safety measures."

Companies need to be aware of the general sentiment of their employees, whether that's heightened anxiety around an uptick in cases or a sense of having heard enough about COVID-19, according to Amory McAndrew, an attorney with Hoguet Newman Regal & Kenney in New York City. Being cognizant of workplace mentality is important for successful employer-employee relationships and can guide how to plan throughout the endemic states of COVID-19, she added.

Lessons Learned

"Employers need to understand that as COVID-19 becomes less dangerous, there is less legal support and cover for asking questions related to it," Robertson said.

The Americans with Disabilities Act prohibits disability-related inquiries unless the questions are job-related and consistent with business necessity. The Equal Employment Opportunity Commission relaxed these rules at the height of the pandemic because of the danger it posed.

"As the variants have become less severe, it is not clear that there will continue to be tolerance in this area," Robertson said. "It is probably legally most prudent to avoid inquiries about COVID-19 and rather to focus more on encouraging employees to remain home and to permit remote work for any illness, not just COVID-19."

Levin-Scherz said, "We have many advantages now compared to a year or three years ago." He said that most people living in the U.S. have some immunity, whether from vaccines or infections.

"We have effective treatments that decrease the likelihood of hospitalization and death," he said. "We know more about how COVID-19 is transmitted and how to prevent transmission."

But, he added that COVID-19 continues to be dangerous, especially for those who are older or immunocompromised. "Long COVID is still a real danger, and COVID is now the third leading cause of death in the U.S," Levin-Scherz said.

Employers should be ready to deploy their crisis management plans and COVID-19 protocols at any time, noted Carol Goodman and Meaghan Roe, attorneys with Herrick Feinstein in New York City.

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