As States Reopen Employers Face Hard Choices on How to Manage Workplace Safety
The coronavirus (“COVID-19”) pandemic has continued to evolve, with COVID-19 cases declining in some areas and vaccinations being rolled out in phases by local public health authorities. Yet widespread vaccinations are not expected to be in place until later in 2021, with many Americans not having access to vaccines until May or June at the earliest. Even so, some states view the evolving circumstances as sufficient to lift restrictions and start returning to “normal.” Mississippi and Texas, for example, have recently lifted mandated requirements on state residents to wear cloth face coverings, capacity limitations on businesses, and other COVID-19 related restrictions. Other states, such as Idaho, Nebraska, and Oklahoma implemented COVID-19 restrictions, but did not go so far as to require residents to wear cloth face coverings or masks while in public. While a majority of states still have mask mandate laws, the inconsistency and changing requirements in COVID-19 restrictions continues to pose challenges for employers in determining how to provide a safe work environment. Employers must also carefully balance workplace safety considerations with workplace cultures, polarized viewpoints, and continually changing dynamics.
As states continue to modify and rescind COVID-19 executive orders and restrictions, employers also need to remember that they may have ongoing obligations under other federal or state laws. From a federal level, employers are currently subject to the General Duty Clause in the Occupational Safety and Health Act (“OSH Act”), which requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. For this reason, employers generally need to evaluate COVID-19 hazards in their workplace and implement responsive preventive controls, even if there is no standing executive order compelling this action. To satisfy their General Duty Clause obligations, employers most likely need to comply with federal OSHA guidance directing employers to maintain written COVID-19 Prevention Plans and implement preventive measures, such as employee use of masks, social distancing, and enhanced cleaning and disinfection measures. Employers may also need to implement engineering (e.g., installation of barriers) and administrative controls to address potential COVID-19 hazards from their operations. Retailers, for instance, may need to consider redesign of workplaces, installation of barriers, and methods for contactless interactions to prevent employees from being exposed to COVID-19 through public or customer interactions.
Some states have also adopted emergency temporary standards that impose strict obligations on employers. California and Oregon, for example, have extensive emergency temporary standard requirements, which include requirements for employees to wear masks or cloth face coverings when there is a potential for interaction with others. Following behind Virginia, these states are also in rulemaking proceedings and plan to enact a permanent COVID-19 standard. Federal OSHA has even more signaled to employers that it intends to issue even stricter COVID-19 workplace safety and health standards and may enact an emergency temporary standard similar or more restrictive to those that have been implemented at a state level. OSHA has also conveyed that enforcement of workplace safety and health preventive measures to protect against COVID-19 exposures and spread of virus is a top priority.
It is nice to think about COVID-19 restrictions ending and life returning to normal. But even as states lift their COVID-19 related orders, employers will need to think carefully about the workplace safety measures implemented in their workplaces. Employers that operate on a national level or in multiple states may also have drastically different compliance obligations related to workplace safety requirements in different locations. This, in turn, could cause significant confusion for employees, customers, visitors, and other third parties that may be on-site. Employers may therefore benefit from engaging in proactive and transparent communications with employees and third parties on COVID-19 response measures.