Employers Must Remain Focused on COVID-19 Issues
By: Kimberly Doud & Nancy A. Johnson
Employers have been handling COVID-19 issues for well over a year. The pandemic response focused first on setting up remote work operations, then on ensuring worker productivity and morale, and now on preparing workplaces for a post-pandemic future. Employers must keep moving forward, and, as discussed below, vaccines and other safety protocols must remain top priorities.
Guidance from the U.S. Equal Employment Opportunity Commission (EEOC), released in December 2020, provided employers can require workers to receive a COVID-19 vaccination without violating non-discrimination laws. However, the EEOC cautioned employers should provide exemptions or accommodations to employees with religious objections to vaccines and those with disabilities preventing vaccination. In our last article, To Vaccinate or Not to Vaccinate? The Latest Quandary, we evaluated three options employers have regarding vaccinations, including mandating them, encouraging them, or remaining silent, and provided the benefits and pitfalls associated with each option.
Littler survey data (link) from earlier this year highlighted how the COVID-19 pandemic reshaped company culture, workplace accommodations, and related policies and protocols. At the time, when vaccinations were not prevalent, employers were hesitant to mandate vaccinations, with less than one percent of those responding requiring vaccinations, only six percent intending to do so once vaccines were readily available or fully FDA approved, and 48 percent deciding not to implement mandates. Not surprisingly, the responses stemmed from concerns over employee relations, employee morale, administrative difficulties, and legal liabilities. Instead of mandating vaccines, the survey data indicated 94% of employers would encourage vaccinations through a variety of ways: education on the benefits (84%); on-site vaccine administration (if authorized) (37%); paid time off to receive and/or recover from the vaccine (33%); and incentives, such as cash awards or other monetary benefits (11%).
With immunizations well underway, how, if at all, have employer perspectives changed? Employers are increasingly more concerned with return-to-office protocols and workplace accommodations for those employees who cannot, or refuse to, get vaccinated. Company culture and employee morale remain top of mind as employers consider a potential fissure between vaccinated and unvaccinated employees. As a result, many employers are separating the decision to return to the office from vaccination status. Nearly half of employers are extending remote work at least into the summer, and 37 percent are allowing employees who want to return to the workplace the opportunity on a voluntary basis. No matter where an employer falls on the remote workplace continuum, vaccinations play a key part in a return to post-pandemic normalcy.
Other Safety Protocols
An employer’s perspective cannot remain myopically focused on vaccine protocols. Instead, in addition to vaccinations, employers must consider other COVID-19 workplace safety issues. Through Executive Order 13999, on January 21, 2021, President Biden tasked the U.S. Department of Labor (DOL) with determining whether emergency workplace safety rules were necessary to combat the spread of COVID-19 in the workplace and provided a deadline of March 15. On January 29, the Occupational Safety and Health Administration (OSHA), which has the authority to issue emergency temporary standards (ETS) to protect U.S. workers from new hazards posing “grave danger,” released guidance recommending companies continue requiring masks and other precautionary measures against COVID-19 even after employees are vaccinated. Contemporaneously, the DOL’s Inspector General issued a report finding OSHA had not provided the level of protection workers needed at various job sites. Thereafter, on March 12, OSHA issued Directive Number DIR 2021-01, establishing a National Emphasis Program on COVID-19. However, the March 15 deadline passed without OSHA commenting on the need for any ETS related to COVID-19. Under increased scrutiny, on April 26, OSHA provided the Office of Management and Budget (OMB) an ETS related to COVID-19, but its provisions are currently unknown, as is the timeline for when OMB will complete its review of the ETS. The ETS will have immediate effect upon publication in the Federal Register and will remain effective for six months or until a permanent standard is adopted following the usual rulemaking procedures. While the details remain a mystery, one thing is certain – employers should prepare for increased and robust OSHA oversight.
Employers previously indicated they would maintain several pandemic-related precautions despite the prevalence of vaccinations. Most will: continue requiring or encouraging masks (81%); modify workspaces to promote social distancing (66%); limit contact in common areas (62%); increase cleanings (56%) and conduct temperature checks or other symptom screenings (50%). However, many states have recently relaxed or eliminated COVID-19 safety precautions. And, on April 27, the U.S. Centers for Disease Control and Prevention (CDC) announced several updates to its Recommendations for Fully Vaccinated People. For example, fully vaccinated workers no longer need to be restricted from work following an exposure as long as they are asymptomatic. Indeed, asymptomatic, vaccinated employees may refrain from testing following known exposure, with some exceptions for employees of non-healthcare congregate settings, such as homeless shelters and correctional and detention facilities, and high-density workplaces, such as poultry processing plants. Asymptomatic employees are no longer required to quarantine after an exposure to someone with suspected or confirmed COVID-19. Employers may also exempt fully vaccinated asymptomatic individuals without an exposure from routine screening testing, if feasible. However, fully vaccinated individuals must continue to wear masks in indoor public settings, including a workplace. Employers should ensure fully vaccinated employees who travel for work continue to protect themselves when traveling, including wearing masks on planes and other forms of public transportation when traveling into, within, or out of the United States. Fully vaccinated international travelers arriving in the United States must test within three days of their flight (or show documentation of recovery from COVID-19 in the past three months) and be tested three to five days after their trip. If fully vaccinated employees experience symptoms of COVID-19, they should isolate and get evaluated and tested for COVID-19.
In addition to following CDC guidance, as updated, employers must follow state and local requirements and public health orders. For example, Broward and Miami-Dade counties both recently re-issued safety guidelines. In Broward County, when 50% of adults have received at least one shot and COVID-19 test positivity is below 5% on a 5-day rolling average for 10 days, social distancing and capacity and gathering limits will be lifted on restaurants and gathering spaces. Gathering limits for outdoor events have been removed so long as social distancing is practiced and heightened sanitation requirements have also been lifted. In Miami-Dade County, masks are still mandatory, social distancing and business occupancy must be monitored, and businesses must designate a “Plan Administrator” and provide employee training. Employers must also continue health screening and exclude exposed employees from work. The local requirement also includes additional industry-specific recommendations.
Compliance with government-issued health standards and guidelines is paramount for employers to avoid liability related to COVID-19. On March 29, Governor DeSantis signed into law Senate Bill 72 (2021), now section 768.38, Florida Statutes, to protect Florida individuals and businesses, including charitable organizations and not-for-profits, educational institutions, government entities, health care providers and religious entities, against lawsuits claiming COVID-19 related damages, injuries or death. Notably, this liability shield law shifts the burden of proof to the plaintiff to establish liability for COVID transmission and imposes a heightened pleading standard requiring a plaintiff to plead his or her complaint with particularity. At the time of filing a lawsuit, a plaintiff must, in most circumstances, also submit a signed affidavit from a Florida licensed physician attesting to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff's COVID-19-related damages, injuries or death occurred as a result of the defendant’s acts or omissions. Ultimately, a court will consider a defendant’s good-faith efforts to comply substantially with relevant standards or guidelines (or inability to do so due to lack of time, resources, or personnel) at the time the cause of action accrued. In other words, a defendant will not be liable unless a plaintiff proves the defendant's acts or omissions constituted intentional misconduct or gross negligence. A plaintiff must file suit within one year of the effective date of the statute or the date the claim accrued, whichever is later. The heightened pleadings and evidentiary standards created in this new law should provide even further protection for employers sued because of employees who allege they contracted the virus due to the business’s actions. It is unclear whether this law could impact vicarious liability cases or other negligence claims related to other aspects of employment law.
Employers must stay focused on COVID-19 issues regardless of pandemic fatigue. While recent emphasis has been placed on vaccinations, an employer’s COVID-19 plans cannot begin and end with immunizations. Instead, employers must abide by federal, state, and local guidelines, including OSHA, CDC, and state and local regulations, regarding operations during the pandemic. Employers must remain aware of COVID-19 guidance at all levels of government and quickly comply with new guidance and regulations as they arise. In the event of guidelines conflict, we recommend following the guidelines providing the most protection. Employers must provide safe work environments for their employees and document good-faith efforts of compliance, including revising handbooks and existing company policies with COVID-19 safety protocols, as well as updated leave and accommodation policies, forming a COVID-19 response team, and maintaining proper documentation of vaccination efforts. When in doubt, employers should consult employment counsel.
 Fully vaccinated means two weeks after the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks after a single-dose vaccine (Johnson & Johnson).