As we enter the new year, and the fourth year of the pandemic, the COVID-19 virus continues to mutate. Two new Omicron subvariants, known as XBB and XBB.1.5 – unofficially nicknamed “Kraken” by some scientists – have emerged as the most transmissible strains to date. The Center for Disease Control and Prevention (CDC) estimates that these new strains account for close to 50% of current COVID-19 infections and are leading to a familiar spike in infections as we’ve seen the last two winters. While thankfully they have not been accompanied by a significant increase in death rates, employers should still review their COVID-19 policies to mitigate the spread of infection (and avoid scrutiny from federal and state workplace safety regulators). What do you need to know about the Kraken – and what are the four steps you should take to cage it?

CDC’s Guidance on Masks and Isolation Remains Intact

Some of you may have been lulled into a false sense of security and not kept track of the latest CDC guidelines when it comes to testing and isolation. The good news is that the guidance provided by the CDC in August 2022 remains relevant for employers seeking to promote best COVID-19 practices. You can read a full summary here, but the high points include:

  • Employees, regardless of their vaccination status, should remain isolated for at least five days after testing positive for COVID-19.
  • Employees with no symptoms may end isolation five days after testing positive, but they should continue to wear a high-quality mask (when indoors and around others) and avoid high-risk individuals for at least eleven days after the positive test.
  • Symptomatic employees must isolate for at least five days after testing positive, and they must continue to isolate until their symptoms improve and they are fever-free for 24 hours (without the use of fever-reducing medication). Additionally, employees who suffered shortness of breath or difficulty breathing, were hospitalized, or have a weakened immune system must isolate until the tenth day after testing positive, regardless of whether their symptoms are improving. They must continue to wear a high-quality mask and avoid high-risk individuals until at least the eleventh day after the positive test. Some masks, like N95 and KN95 respirators, offer greater protection than others, like standard cloth masks. Employers should beware that requiring employees to use N95 or KN95 masks means they must comply with additional OSHA requirements.
  • As recently as December 16, the CDC estimated that more than 44% of U.S. counties were experiencing medium-to-high COVID-19 community levels. Now, more than 60% of counties are at those levels. If you are in one of those counties, the CDC advises implementing a number of mitigation strategies, like wearing high-quality masks when indoors in public and testing individuals who have household or social contact with someone at high-risk of getting very sick. In high-risk counties, the CDC recommends universal mask-wearing.

OSHA Remains Aggressive in Doling Out Penalties for COVID-19 Related Violations

After the Occupational Safety and Health Administration (OSHA) saw its Emergency Temporary Standard (ETS) knocked back by the Supreme Court early last year, U.S. Secretary of Labor Marty Walsh issued a statement that OSHA wouldn’t rest. Instead, it would use its existing powers, including its authority under the General Duty Clause, to enforce workplace standards relating to the transmission of COVID-19. This turned out to be no bluff.

By November 30, the agency had issued close to 20,000 COVID-related complaints to employers it found in violation, assessing $7.9 million in penalties. Those complaints were filed for a wide variety of reasons, like an employer’s failure to provide adequate PPE, not sending home employees exposed to COVID, and lack of social distancing.

And the agency is showing no signs of slowing down. Fisher Phillips is closely monitoring OSHA’s activity through its first-of-its-kind OSHA Inspections Tracker, where you can delve into the data to find information relevant to your industry and area. While the inspection trends are broad, pandemic-related inspections remain one of OSHA’s highest priorities.

What Should Employers Do? 4-Step Plan

It is clear that COVID-19 is not going away – and neither is OSHA. Though most of our day-to-day lives more resemble pre-pandemic times than those dark restrictive and isolated days, employers should not grow complacent when it comes to the oversight of their workplaces. There are four primary ways you can limit the spread of these new variants and, simultaneously, avoid penalties for COVID-related violations.

  1. Have a Written COVID-19/Infectious Disease Policy. Even if you never adopted a written COVID-19 plan, it’s never too late to document the policies you have in place to keep employees safe from any infectious disease. This is especially important when considering future changes in infection rates in different communities. Work with counsel and/or a safety professional to write down what you are doing to keep employees healthy in response to COVID-19 or any other infectious disease. This helps with training employees on your programs.
  2. Engage with your Employees. The companies that thrived during the pandemic are those that communicated with, listened to, and engaged their workforce. Ask non-managers for feedback on company policies, listen and address their concerns through tasks like safety committees, audits, and safety improvement projects, and provide a transparent workplace where their concerns are considered.
  3. Clean the Workplace. There are several benefits to keeping a clean workplace. A sanitized workplace will not just help mitigate the transmission of COVID-19, it will keep employees feeling happy and safe. It may also lead OSHA inspectors to spend less time looking for violations.
  4. Consider Masking Policies in Areas of High Community Spread.Employers in areas of high COVID-19 community levels of transmission should consider revisiting mask policies. There is a risk of an OSHA inspection (which you can track here) or a General Duty Clause citation if you fail to implement an appropriate mask policy in such an area. While your workforce may be resistant to a mask mandate depending on your circumstances, there may be other ways to implement a policy that offers some level of protection (requiring masks at certain areas or times of day, for example).

Conclusion

We will continue to monitor these developments and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact the authors of this Insight, your Fisher Phillips attorney, or any member of our Workplace Safety Practice Group.

Predicting the future of work is no easy task. But it’s necessary to help people managers keep employees engaged and productive.

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You may have heard about ChatGPT over the last few weeks, a new chatbot with an uncanny ability to mimic human dialogue and decision making. This artificial intelligence (AI) — which was developed by OpenAI and is currently free to access — has a simple premise: You “talk” to a chatbot that can assist you with any number of tasks. For example, you can ask it to explain a subject, write an essay or article, run a calculation, help code in Python, or simply follow a conversation. The technology then pulls knowledge from its dataset and produces a response that looks surprisingly accurate — at least at first glance. The release of ChatGPT has led many employers (and employees) to become excited about the ways they can use this service to streamline their processes. But questions remain about the reliability of the data it spits back at you. Notably, ChatGPT is currently in its “initial research preview” — which means the technology is still being tested and researched before being fully released for commercial use. Given these limitations, you should carefully consider the issues that may arise before using such technology in the workplace. Here are three caveats for employers to keep in mind as this technology continues to develop:

Recognize ChatGPT’s Limitations

Because of its ease of use and capabilities — and despite being in limited beta — ChatGPT quickly made headlines for its ability to automate tasks and produce usable, written material. It has come as no surprise that business professionals spanning many disciplines have already experimented with the new technology, whether they’re in marketing, human resources, accounting, software engineering, legal departments, education, or other fields.

As exciting as the technology may be, however, ChatGPT has limitations — and employers should be cautious about relying on it for serious, consequential matters. Indeed, its developers have themselves cautioned against doing so.

Sam Altman, the CEO and co-founder of Open AI, tweeted on December 10: “ChatGPT is incredibly limited, but good enough at some things to create a misleading impression of greatness. It’s a mistake to rely on it for anything important right now. It’s a preview of progress; we have lots of work to do on robustness and truthfulness.” Greg Brockman, the company’s President and co-founder, responded: “We believe in shipping early & often, with the hope of learning how to make a really useful and reliable AI through real-world experience and feedback. Correspondingly important to realize we’re not there yet — ChatGPT not yet ready to be relied on for anything important!”

Further, ChatGPT was trained on a dataset (a wide range of texts, including books, websites, and articles from many different sources) that was current up until 2021, and its knowledge is based only on information that was available at that time. It cannot browse the internet or access new information, so its answers – particularly about developments in labor and employment law – might not be up to date.

Moreover, questions remain about ChatGPT’s ability to assess the credibility and accuracy of the information it provides you. The bot itself encourages users to independently verify any information they receive from it.

Given all of these concerns, here are the three initial caveats employers should consider before plunging in with both feet.

1. Use Caution When Creating Employment Documents

Although ChatGPT may seem like a great tool to help you draft employment documents, you should consider using it only as a starting point and consult with your employment attorney on its effectiveness — because problems might otherwise arise.

For example, if you ask it to draft an employee handbook policy, it may give you a document that seems competent on its face but actually lacks important nuances. An anti-discrimination policy may cover the basics but likely won’t account for local variances or company culture or exhibit the human understanding needed to navigate discrimination issues.

These problems will also likely arise when asking ChatGPT to draft other employee-related documents. The final product may be a mile wide but only an inch deep. Similarly, the chatbot may generate a competent-sounding confidentiality agreement that fails to cover your company’s specific environment, and hasn’t been battle-tested by the applicable courts.

All of these warnings lead to the inevitable conclusion: There is no guarantee that the documents you ask the chatbot to draft will be legally enforceable or provide you with the protection your business needs.

2. Consider Confidentiality and Privacy Issues

When logging into ChatGPT, the tool expressly warns users that: “Conversations may be reviewed by our AI trainers to improve our systems,” and cautions, “Please don’t share any sensitive information in your conversations.” Considering the popularity of ChatGPT and the lure of using the tool to “cheat” on work assignments, employers are rightly concerned that their employees might ignore those warnings and unwittingly feed it confidential business information or trade secrets.  Additionally, these potential disclosures could expose your business to liability under a rising tide of privacy laws, such as the California Consumer Privacy Act (CCPA).

As a result, employers are wise to consider updating and redistributing any applicable confidentiality and trade secret policies to ensure they cover the use of any third-party A.I. tools, and should train employees as necessary. Employers might also consider blocking access to such tools on any work devices. Of course, you may also want to explain your rationale for restricting access, so employees understand the limitations to the technology and why you have taken this step.

3. Be Sure to Check Your Calculations

ChatGPT is also capable of running numerous calculations. For example, it can calculate payroll deductions for state and federal income tax, Social Security, and Medicare. The technology can also produce Excel formulas, calculate wages based on hours worked, consider overtime rates, and more.

But relying on ChatGPT for these calculations can be dangerous, as there is no guarantee of accuracy. Also, the chatbot may not consider nuances in the law. Will it incorporate state and federal requirements, as well as local minimum wage rules? As every math teacher reminded us: Make sure you check the work.

Getting these calculations wrong can be costly. For example, miscalculating employee paychecks can be a huge source of liability under numerous laws. And failing to properly pay employees and withhold deductions can prompt a visit from the Department of Labor, IRS, or other government agencies. So, before you use ChatGPT as a calculator, make sure that any calculations are accurate and based on correct inputs.

ChatGPT is the Tip of the AI Iceberg

New technological advancements typically prompt a discussion about job automation and the other numerous ways in which AI can transform your operations. ChatGPT is no different. Expect this latest exciting leap into the future to prompt excitement, concern, discussion, and questions from all corners of your workplace, and be prepared to address them in a thoughtful and considered manner.

As AI develops and improves, you should begin to consider what types of work can be automated, if you haven’t already. For example, can AI eliminate certain “grunt work” so your employees can work on more interesting “bigger picture” projects? Technology like ChatGPT may ultimately be used to quickly perform complex but undesirable tasks, such as generating analytical reports that would otherwise take hours or days for an employee to create.

But even if you can use AI to automate work, should you? You’ll have to carefully weigh the risks and benefits at the current time. And at least for now, most tasks will still require human oversight, which may limit your ability to effectively leverage them for meaningful work in the near future. But you should keep close watch on developments in this area, because a future where AI plays a key role in your company’s work is right around the corner. 

Conclusion

We will continue to monitor developments on ChatGPT and artificial intelligence, so make sure you are subscribed to Fisher Phillips’ Insight System to keep up with the most up-to-date information. Please contact the authors of this Insight or your Fisher Phillips attorney should you have any questions.

In a bylined article published in The Journal of Robotics, Artificial Intelligence & Law, David Walton and Karen Odash provide a detailed description of how employers can protect algorithm-based intellectual property (IP) when traditional protections, like patent protections and copyright, do not apply to abstract ideas. The authors explain how the best and only option may be to utilize trade secret protections.

To read the article visit The Journal of Robotics, Artificial Intelligence & Law.

In an interview with Inclusion Magazine, Regina Petty shares her insight on different strategies that can help promote diversity in legal workplaces. She explains that when she became Chief Diversity Officer at Fisher Phillips, she started to introduce herself to other CDOs to understand what they had learned. “All the data that I could think to ask for, I asked for,” said Regina. The article highlights Regina’s various accomplishments across the firm, including her leadership in earning the firm the prestigious Mansfield Rule Certification, which requires firms to consider historically underrepresented lawyers for top roles and outside counsel leadership, noting that 30% of leadership roles at Fisher Phillips are held by lawyers of color or other diversity categories.

To read the article visit Inclusion Magazine.

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