By Adam R. Young, Daniel R. BirnbaumA. Scott Hecker, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis:  With concerns of infectious disease at the forefront of workplace health and safety in the past several years, and with the traditional flu and cold season upon us, OSHA has reminded the regulated community to prevent the spread of infectious diseases during the holiday season by encouraging its workforce to get the flu vaccine .

As the country cautiously shifts back to work practices that are more in line with pre-COVID policies, OSHA remains vigilant in ensuring workplaces properly encourage vaccination for employees with respect to both COVID-19 and traditional flu.  Unlike COVID-19, OSHA does not consider illness resulting from flu shots or flu and cold as work-related illnesses that must be recorded by employers on their OSHA 300 forms.  Moreover, OSHA enforcement of illness related to flu remains relatively rare in comparison to enforcement for COVID-related issues. 

However, employers should remain cautious.  Despite the wide availability of vaccinations and boosters, the Omicron variant caused in the winter of 2021 the highest case and hospitalization rates of COVID-19 during the entire pandemic.  Moreover, flu and cold cases historically spike during the winter.  Rising workplace cases result from additional temporary workers who may spread these illnesses, and from employees facing increased risk due to non-work related family and social gatherings.  If large outbreaks occur in select economic sectors that impact a significant amount of the workforce, OSHA may consider enforcement if it determines that employers are not doing enough to protect their employees. 

Even in the absence of OSHA enforcement, flu or COVID-19 illness can have several detrimental effects on the workforce, including:

  • work disruptions in the form of employees having to call off sick;
  • poor work productivity for those who are recovering from illness upon their return to work;
  • a strained relationship with the workforce which may manifest itself in safety complaints filed with the agency if employees believe management is not doing enough to prevent the spread of infectious disease
  • labor relations issues that may make management vulnerable during organizing drives.

In its guidance, OSHA stresses that infections peak between December and February, when employers must be particularly vigilant.  Certain industries, such as healthcare, may exercise more caution than non-healthcare workers. Flu vaccination remains one of the most effective ways to prevent infection.  As with COVID, employees must demonstrate good hygiene, cough and sneeze etiquette, and stay home when sick.  Improved ventilation can also minimize the risk of transmission.  OSHA also notes that viruses change frequently and the CDC provides up-to-date information on the most current recommended precautions and protocols.

Given the safety concerns raised by the pandemic and the continuing concerns posed by flu season, OSHA may be in the process of developing an Aerosol Transmissible Diseases standard that could address both COVID-19 and influenza, as well as the corresponding precautions and protocols required in the workplace.  Until then, employers must keep employees safe, consistent with an employer’s general duty to provide a workplace free from recognized hazards.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Group.