Is the Workers' Compensation System prepared for Omicron


As this holiday season approaches, employers, insurance companies, and employees will be facing what may be the biggest COVID challenges of the year. The highly infectious disease variant Omicron detected initially in South Africa is spreading worldwide, including reported cases in the US.

Stakeholders Face Challenges
The numerous stakeholders of the workers’ compensation system have been repeatedly faced with episodes of increased infectious disease, and little has been done to take the necessary precautions against the hazardous consequences. The insurance program has been left to absorb the impacts that have been generated complacency, hesitancy, and a fractured political landscape. Reliance upon the public healthcare system in some areas of the nation has been disappointing due to lack of confidence and exiting of dedicated and long-time staff members who have become targets for dissent. 

Changing Landscape of Workers’ Compensation
All social insurance system participants face new challenges not anticipated by the crafters of the 1911 system that was fashioned after the European model. Medical delivery in most industrialized countries operates under a single-payer or unified system. Work has changed dramatically to remote and non-industrial in many instances. The disruption in the workplace caused by closings and illness has created reductions in premiums and creates limits to coordinate evidence to establish or deny compensability.

The administration of the programs has been conducted virtually in most jurisdictions. Statutory presumptions of causation are a newly emerging patchwork that lacks legal precedent. Medical delivery has adopted telehealth for both treatment and expert evaluations. The attempts at pandemic preparedness are disjointed, confused, and lack a coordinated approach. 
The structural changes appearing in the variant spike protein receptor make it challenging to predict the binding interacts with neutralizing antibodies. The potential structural changes in the receptor-binding domain of the variant, B. 11. 529 may affect how vaccines protect against infection (vaccine efficacy). The World Health Organization [WHO] on November 26 designated the newly identified SARS-CoV-2 variant B.1.1.529 a variant of concern (VOC), named Omicron, based on the advice of the agency's Technical Advisory Group on Virus Evolution (TAG-VE).

The WHO based its decision on the evidence that indicated the variant was more transmittable, causing more increased severe disease (virulence ) and the vast number of known mutations. It is uncertain whether Omicron will decrease in the effectiveness of public health and social measures or available diagnostics, vaccines, therapeutics.

The Omicron variant has now been reported in 19 states.

The emergence of Omicron interacts with the political infighting across the United States regarding vaccine mandates and precautions during this holiday season. The Biden administration's aggressive approach to eliminating COVID has been challenged on multiple fronts. Efforts to impose universal masking and vaccination requirements in the workplace have been halted and restricted by political factions leaving vast amounts of workers unprotected.

In addition, many root causes are distracting the stakeholders from the important confronting objective of maintaining a safe workplace. Confusion has been left to rein unabated. Stakeholders who have been distracted by all the collateral noise need to prepare Omicron. Reliance on the governmental direction has been confusing. The Biden’s Administration offered new proposals with tools to combat the Omicron variant, including masking, at-home testing, and increasing the pace of vaccinations. Judicial challenges to the proposed OSGHA Emergency Temporary Standard are ongoing.

New York City Takes Action
Mayor Bill de Blasio today announced significant expansions to the “Key to NYC” program, the first-in-nation vaccination mandate for workers and customers at indoor dining, fitness, entertainment, and performance venues. Starting December 14th, the program will require children aged 5-11 to show proof of one vaccination dose for those venues. Beginning December 27th, New Yorkers aged 12 and older will be required to show evidence of two vaccine doses, instead of one, except for those who have received the Johnson & Johnson vaccine.

The mayor also announced a first-in-the-nation vaccine mandate for private-sector workers. The order will take effect on December 27th and apply to roughly 184,000 businesses.

The City will issue additional enforcement and reasonable accommodation guidance on December 15th and other resources to support small businesses with implementation. Acceptable proof of vaccination includes a CDC-issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App. Ninety-four percent of the City workforce is vaccinated.

Stakeholders Need to Act Now
Stakeholders should act proactively in preventing widespread infections in the workplace. Adopting search methods will avoid the consequences of infections in the administration and payment of workers’ compensation claims. In early January 2020, at the inception of the initial COVID Pandemic, I wrote that workers’ compensation programs historically have not adequately prepared for the challenges of infections disease in the workplace and the tsunami of disease and claims that could result.

Workers’ Compensation insurance companies should prepare and direct employers to have workplace evaluations and advise their insureds on how to take precautions to maintain a safe occupation environment considering the new variant. The insurance companies should support and provide a list of professional experts highly qualified to provide guidance on infectious disease prevention. Compensation rating agencies should offer discounts when employers adopt pandemic preparedness protocols. Employees and their unions should insist that employers take adequate precautions and retain professional guidance in preventing infectious diseases.

Now is the window of opportunity to adequately prepare in the workplace for the next wave of COVID. By acting proactively, workers’ compensation stakeholders will reduce adverse outcomes and restore stability in the workplace. 
By Jon L. Gelman

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