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.