Managing Workplace Safety Obligations During COVID

 

How to Manage Changing COVID-19 Workplace Safety Obligations

By Lisa Nagele-Piazza, J.D., SHRM-SCPMarch 1, 2022

Employers may be tempted to lift their pandemic-related safety requirements as federal and state authorities ease masking and other COVID-19 rules. But employers should note that they have ongoing obligations to protect the health and safety of their workers.

"It's a lot to keep up with," said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. She recommended that HR professionals speak with a trusted employment attorney to ensure their policies are up-to-date.

"There's a lot of interplay between federal and local law, and decision-makers need help to wade through all the text and information that's coming out, seemingly on a weekly basis," she noted.

Lisa Koblin, an attorney with Saul Ewing Arnstein & Lehr in Philadelphia, said employers should stay alert and flexible. "While most state and local government agencies are rolling back [many] COVID-19 workplace safety rules, we know from the last two years that these rollbacks are subject to change at any time."

Employers should prepare a transition plan that allows adequate time to communicate changes with employees and implement new policies, Koblin said. She suggested that employers create fallback rules and guidelines in case heightened safety precautions must be reinstated.

Responding to Changes

Some states dropped their masking and social-distancing rules after COVID-19 vaccinations became widely accessible in 2021. Other states introduced stringent safety requirements during spikes in COVID-19 cases caused by the delta and omicron variants. But even states with strict mandates are starting to roll back their directives.

Additionally, the latest guidance from the U.S. Centers for Disease Control and Prevention (CDC) allows many communities to ease their indoor masking requirements.

What does this mean for employers and their workplace masking rules? "This is a contentious issue and partially depends on your company culture," said Jessica Daley, an attorney with Newmeyer Dillion in Newport Beach, Calif. "At a minimum you need to abide by the rules applicable to each specific location. However, if you think your company culture would be better served by a stricter requirement than what the state or local rules require, then that is a discretionary call you can make."

Some employees may feel safer with a masking requirement even if their state does not require it, Daley noted. Other employees might resist workplace requirements that are more stringent than the applicable rules. 

An employer's requirements may depend on the nature of the worksite and the likelihood of COVID-19 exposure, said Katie Erno, an attorney with Crowell & Moring in Washington, D.C. For example, lifting mask requirements may be less risky if the worksite is in an area where COVID-19 cases are dropping and employees primarily work in offices and cubicles that are spaced at least 6 feet apart.

However, if COVID-19 cases are rising in the area and employees are in a manufacturing setting where physical distancing is not possible, it would be prudent to continue to require masks, Erno said. 

When making decisions regarding mask requirements, employers should also review applicable guidance from the federal Occupational Safety and Health Administration (OSHA) or their state OSHA plan, which may have heightened safety rules.

Although OSHA rescinded its vaccine-or-testing mandate for large employers, the Occupational Safety and Health Act's general duty clause still requires workplaces to be free from known hazards that are likely to cause death or serious physical harm to employees.

"Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation," said U.S. Secretary of Labor Marty Walsh.

Handling Conflicting Rules

"The job of a multistate employer is much more difficult these days," Mastroianni observed. Some states prohibit employers from requiring proof of vaccination, while others mandate vaccination for at least some jobs.

"Given the variants between state laws, it's almost impossible to have a companywide COVID protocol on vaccination policies," she explained.

Erno noted that employers can't always take the "lowest-common-denominator approach" by creating one multistate policy that incorporates the strictest rules. "This is particularly true when it comes to employee vaccine mandates," she said. For example, an employer with worksites in New York City and Florida cannot have a single vaccination policy that complies with the laws of both jurisdictions. New York City requires private employers to mandate vaccination, with exceptions only for those who cannot be vaccinated for religious or medical reasons. 

Florida law, however, prohibits private-employer vaccine mandates unless the employer offers very specific exceptions that go beyond religious and medical objections.

Thus, multistate employers must carefully track state and local requirements and restrictions when creating and updating COVID-19 policies, Erno explained.

Employers that still decide to issue a policy for all worksites should be prepared to make adjustments or exceptions for employees working in any state that has outlawed vaccine mandates or other COVID-19-related practices that are otherwise required by the global policy, Koblin said.

"Employers who operate in-person worksites in multiple states should continue to identify a point person or group of people who are responsible for tracking critical changes to COVID-related safety rules required for each workplace," she added. The point person should provide periodic updates to the employer's leadership team and work with experienced employment counsel to keep the employer informed of any new safety rules.

Mastroianni recommended that the designated person check the CDC, OSHA and state health department websites for new guidelines and rules on a daily or weekly basis.

Employers should continue to provide updates. "It is important to communicate frequently with employees about changes and make clear that the workplace safety rules are evolving based on state and local requirements," Erno noted.

Students and Staff Say They Are Shell Shocked at A Tiny Ukrainian High School in New York City

 

Principal Andrew Stasiw points to a photo of his students at the Ukrainian American Youth Association Camp in Ellenville, New York. (Meghan Gallagher / The 74)

‘We’re Shell Shocked’: A Tiny Ukrainian School in New York City Struggles with War in Homeland

The 74, By Meghan Gallagher | March 13, 2022

Every morning for the past few weeks, students and staff at St. George Academy in New York City start their day by checking to see if relatives and friends in Ukraine are still alive.

“We’re shell shocked,” said Andrew Stasiw, principal of the tiny Ukrainian Catholic high school in the East Village. “We have students breaking down and crying. We’re trying to run school as normally as possible … but it’s impossible not to be thinking of Ukraine.”

And because it is impossible not to be thinking of Ukraine, life inside the high school that opened in 1947 in the city’s Little Ukraine neighborhood has strayed far from class routines and schedules for its 80 students, their teachers and staff.

For many at St. George Academy, the country currently under attack by Russia is home — and the pull toward home remains strong.

A teacher is desperately trying to get her 11 grandchildren out of Ukraine. A guidance counselor’s job has shifted from discussions about college and career with students to discussions about life and death.

Students are fearful Russian spies are hacking their laptops. A student’s escape from Ukraine meant leaving his father and friends behind to fight. Now the teen is grappling with guilt and worry — and the lingering question of whether he too should have stayed.

“I know at least four young men that are here … many of them who would go [to fight Russia]. Parents have reached out to me and said, ‘Hey, try to talk to them, and let them know that they can do more good from here,’” Stasiw said, “Parents have that knee jerk reaction to protect their children.”

Before the news broke, guidance counselor Nicole Giovenco’s day revolved around reading college applications and enrolling students in AP exams. Now, students come knocking on her door asking her to listen to their fears about the war.

“Some of them have brothers over there fighting,” said Giovenco. “They get that one phone call or WhatsApp message a day from them, if they’re lucky, and if they don’t they have no idea what to think.”

There have been moments when Stasiw has broken down, tearing up about the crisis. Volodymyr Zelenskyy, the President of Ukraine, has inspired him to stay strong for his students.

“Leadership has to lead, and in a microcosm, I’m a leader of a very small school here,” he said.

Once, St. George Academy enrolled 900 Ukrainian students. Now just 40 percent are of Ukrainian heritage, though the school still emphasizes the country’s culture. Three Ukrainian refugee students have enrolled in recent days — and more are expected.

At the urging of his mother in New York who had wanted him to come live with her, Maksym Kosar, 17, packed an escape bag with dried food, water and his passport a week before his hometown, Ivano-Frankivsk, a city in western Ukraine, was invaded. The morning he heard bombs going off he fled on his own. He made his way out safely, but his father stayed behind to fight.

“My dad is in Ukraine because he couldn’t leave at the moment,” said Maksym during his first day at the school. “I will call him as soon as I get home.”

School staff are also managing dire family affairs from afar: A Ukrainian teacher has taken days off, desperate to arrange the escape of her 11 grandchildren, who span 4 months to 11 years old.

“She’s wrecked,” was all Stasiw would say about the situation.

Irene Saviano, who teaches art and works in the office, was excited to start working on this year’s pysanky — Ukrainian Easter eggs — with her students, but the project has been put on hold because everyone at St. George Academy is focused on the war.

Ukrainian culture, from learning about the eggs to singing traditional hymns, is woven into the school culture. Now, said Saviano, those traditions and lessons have taken on a new importance, giving students a renewed sense of pride.

“Everybody’s singing Ukrainian,” Saviano said. “They don’t refuse it. They actually welcome it.”

As Stasiw popped in and out of classrooms, students ran up to him eager to share updates. Many found it too painful and dangerous to speak about the war and, in Ukrainian, told their principal why.

“They’re afraid the interview will get them in trouble with Putin,” Stasiw translated.

Walking down a hallway adorned with blue and yellow posters, Stasiw was stopped by a student with another fear: He thought his laptop’s security had been compromised by Russian spies.

“There are threats of cyber attacks happening in this neighborhood,” he shared, telling the student he would take a look.

Stasiw said it’s been hard to know exactly what to do and say to students, so he prepared a presentation “to explain to them what’s going on, especially for the non-Ukrainian students.

“I talked about how we have to be compassionate and how Ukrainians do not hate Russians,” he said.

For students like Janna, 17, who lived in Ukraine until she was nine-years-old and still has family there, discussing the war is helping her cope.

“It feels like a nightmare,” she said. “Raising awareness is good.”

Sparking discussion and keeping his culture close, Oleh Holintayy, 15, like many other St. George students, has swapped out his uniform for a vyshyvanka, a traditional embroidered Ukrainian shirt.

“This vyshyvanka was made by my great-grandmother, who’s still in Ukraine,” said Holintayy. The teen, who emigrated from Ukraine when he was three, has slept little in recent weeks and become obsessed with checking his phone for updates.

Just like other students at Saint George, seniors Sophia Klyuba and Vitalina Voitenko can only think about the safety of their loved ones in Ukraine.

“My whole family except for my dad is in Ukraine. My mom, my grandma, sister, nephew, aunt and uncle,” Sophia, 17. “You cannot really focus on anything else and think about anything else… You call your family to know that they’re still alive and well. I really want to be with them right now even though it’s very dangerous … I cannot imagine anything happening to them.”

St. George students and staff have looked for ways to show support for their homeland — from singing the Ukrainian national anthem in front of New York Gov. Kathy Hochul at their church, to sending messages to soldiers. Stasiw told students they could also help by spreading the word about the charity St. George Academy partnered with, Razom for Ukraine, which raises funds to send over medical supplies.

Together the students traveled to Washington D.C. to protest the war, toting the signs they assembled inside their small, proud-to-be Ukrainian high school.