The official United States government-decreed COVID-19 national emergency may have ended on May 11, but employers still need to respond appropriately in the future, particularly when it comes to different requirements that continue to be in force in various states and other jurisdictions.
“The COVID-19 era of employment law is transitioning, and with this transition come new challenges that require employers to carry on the lessons gained from the pandemic about workplace safety,” say attorneys for the law firm of Proskauer Rose, one of the many employment law firms that have issued similar warnings to their clients. “Employers should consult state and local requirements to determine what is necessary in order for them to comply with applicable law.”
However, it is true that in the absence of applicable federal, state or local requirements, employers now have significantly more flexibility to determine how best to promote a productive and healthy work environment while mitigating the risk of workplace disruption from illnesses, the attorneys stress.
When it comes to employee masking, for example, most of the states already have removed indoor masking rules, although such requirements can remain in effect in certain settings, such as for healthcare facilities.
Some states continue to maintain masking requirements under specified conditions, the attorneys note. For example, Washington state requires that employers ensure workers wear appropriate, fit-tested, and National Institute of Safety & Health (NIOSH)-approved respirators, if they are required to provide healthcare or work near someone believed to have COVID-19; it can be otherwise required under a state COVID-19 “hazard assessment.”
“Employers who are no longer required to maintain masking requirements for employees can evaluate whether they want to maintain such policies going forward or eliminate or modify such policies (such as by shifting to ‘masking preferred’ or ‘masking optional’ standards),” the attorneys observe.
Most testing requirements for employees have been lifted, including those in jurisdictions that previously required unvaccinated individuals to submit to weekly testing in place of vaccination. For example, New York City no longer requires unvaccinated city employees to wear masks and undergo periodic testing, except in a few specified instances following COVID-19 infection.
In addition, the Centers of Disease Control & Prevention (CDC) since its August 2022 guidance no longer recommends testing asymptomatic persons with no exposure to high-risk congregate settings, such as long-term care facilities, homeless shelters, correctional facilities and workplace settings that include congregate housing with limited access to medical care.
Employers are reminded by the Proskauer Rose attorneys that they may be responsible under the federal Fair Labor Standards Act (FLSA) and state wage and hour law for compensating non-exempt employees for time spent adhering to employer COVID-19 requirements, including required COVID testing.
Vaccine Mandates Fade
No issue was more controversial and hard fought over in the courts and the political arena than was the vaccine mandate. Most state and municipal COVID-19 vaccine mandates have either lapsed or have been rescinded—as has been the case with most of the federal requirement that remained following court defeats.
On May 1, the Biden Administration announced that the federal contractor and subcontractor vaccine mandate issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order would end on May 11. In spite of this, private employers are legally allowed to choose to require vaccinations for their employees if they so wish.
“With the shift away from vaccine mandates, employers must now evaluate whether to continue to maintain a vaccination requirement for their employees,” say the Proskauer Rose attorneys. “Employers who maintain COVID-19 related requirements should still keep in mind their obligation to consider reasonable accommodation requests to workplace vaccine requirements on the basis of medical need or religious beliefs.”
On the other hand, some of the state laws and regulations that restricted employers’ ability to impose workforce vaccine requirements previously are slated to be sunset, if they haven’t already, which will make it easier for employers to impose vaccine requirements in the future, the attorneys point out.
However, employers must continue to recognize that if they do institute a COVID-19 vaccination program, they are still obligated to consider reasonable accommodation requests from the employees targeted for the needle. In addition, employers may be responsible under the FLSA and/or state law for compensating non-exempt employees for time spent receiving their vaccination.
Laws imposing an additional amount of paid leave due to COVID-19 illness have lapsed in several jurisdictions, including California’s COVID-19 supplemental paid sick leave, which expired at the end of last year. However, other jurisdictions have chosen to maintain them. New York State’s COVID-19 sick leave law is one example.
Similar sick leave laws are slated to retire, including Florida’s on June 1 and Tennessee’s on July 1. Some other state obligations that remain in force include New York’s state law that forces employers to provide workers with up to four hours of paid leave per vaccination dose (including boosters), which will remain in effect through December 31.
Some jurisdictions like California also have chosen to integrate their COVID-specific safety plans into their ongoing workplace safety rules. California employers must maintain a separate “Injury and Illness Prevention Program” which addresses COVID and other workplace hazards.
California’s guidance delineates COVID-specific requirements that must be included in an employer’s program, such as COVID-19 hazard prevention training and investigation and response to COVID cases that may arise.
Other states that maintain their own occupational safety hazard agencies still have in effect COVID-19 requirements and guidance. For example, Washington state continues to maintain guidance for both private and state employers which also requires, among other things, that employers address COVID-19 hazards in their accident prevention programs.
Other Laws Still Apply
The Proskauer Rose attorneys tell employers they also should be aware of the continued interplay of COVID-19 and other employment laws, such as the Americans with Disabilities Act (ADA) and, in some cases, state or local disability laws. Under these requirements, employers must engage in the interactive process with employees who seek a medical accommodation due to the effects of long COVID.
The federal Equal Opportunity Employment Commission (EEOC) has stresed in another guidance regarding this issue that the effects of long COVID could constitute an actual disability under the ADA. As part of the interactive process, employers are permitted to request reasonable supporting medical documentation to better assess a request for accommodation as a result of long COVID, they explain.
Employers also may need to assess whether an employee coming down with COVID-19 and any long COVID symptoms may qualify as a covered “serious health condition” under the federal Family and Medical Leave Act (FMLA) and similar state or local leave laws.
Make sure to keep in mind the ADA and other laws’ medical confidentiality requirements, the attorneys warn. For example, any employee medical information received in connection with a COVID-related request for leave, reasonable accommodation or other issues must be maintained as confidential and stored in a medical file that is separate and apart from an employee’s regular personnel file.
Proskauer Rose also urges employers to monitor the most up-to-date CDC guidance on best practices regarding individuals who have been exposed to COVID-19 or who are symptomatic or have tested positive.
The CDC currently recommends that individuals who may have been exposed to COVID-19 wear a mask for up to 10 days when indoors. It also recommends that symptomatic individuals isolate for a minimum of five days and only end isolation when in addition to seeing an improvement of other symptoms, they are without fever for 24 hours.
In addition, the CDC suggested in its August 2022 guidance precautions that employers can consider implementing such as improved ventilation and filtration systems and the provision of adequate hand sanitation supplies.
Any employers who have not yet reviewed their existing COVID-19 policies and procedures to ensure they reflect current workplace practices should do so as quickly as possible, the Proskauer Rose attorneys state. “Employers who have eased or eliminated the enforcement of masking, testing or mandatory vaccination policies should ensure that any employee-facing policies are revised to reflect the current manner in which those policies are enforced,” they state.