Over the past several months as the rates of new COVID-19 cases dropped, there has been a collective celebration and a return to some sense of normal. Hopefully, we will stay there. Everyone is, frankly, tired of the Pandemic and wants to stop talking about it.
This raises the questions we have been asked frequently over the past several weeks.
- Can I get rid of my mask requirement?
- What should my policy say now?
- Can I just get rid of my COVID-19 policy?
Most employers have lifted their mask mandate and understand that it is ok to do so, as long as the rate of new cases is low. But what exactly should the policy be going forward?
As health care employers know, the vaccine mandate in the health care industry was upheld by the US Supreme Court, while the rest of employers saw the OSHA vaccine mandate reversed by the US Supreme Court. The Supreme Court ruling returned general industry to a loose set of federal, state and local guidelines, recommendations or rules.
OSHA has been saying that it may issue new guidance soon. But, what that probably means is OSHA is waiting to see if the rate of infection begins to increase again as it did over the past few years. Meanwhile, OSHA claims the power to issue citations to non-health care employers under the OSHA general duty clause (Section 5(a)1 of the OSH Act). So, what does the general duty clause require from employers? Or for employers who would like to avoid a citation, perhaps the better question is: What does OSHA think it requires?
One easy answer OSHA can apply to that question is, that employers should follow their own policy. If you have a policy, it is very likely that OSHA will cite you for not following that policy. So, should you get rid of the policy you have? Our answer is that you should revise your policy to match with current guidance. If you don’t do that, get rid of the policy, if you are not following it, since it will be used by OSHA to cite you.
Another way to determine what OSHA thinks its general duty requires is to look at citations that OSHA has issued. OSHA has cited employers across the country for violations of the general duty clause in connection with COVID-19, and those citations would be evidence of what OSHA considers the employer’s general duty. But there are no decisions in any of those cases yet.
So, the best evidence of what OSHA claims to be the general duty of an employer right now, can be found in settlements of cases. Below are the points from a recent OSHA settlement we reached with OSHA that form a helpful precedent for what to do now in terms of a revised COVID policy under the OSH Act.
Response to COVID in Recent OSHA Settlement
Following an outbreak of COVID-19 at a company, OSHA settled a general duty clause citation identifying the following actions as abatement.
- Reiterate to employees the importance of doing health screenings and when to stay home due to respiratory illness;
- Review and update, to the extent deemed necessary, your sick-leave policy as it relates to employees experiencing a respiratory illness;
- Follow CDC, State, and Municipal public health recommendation, as applicable to you, related to quarantining, teleworking (to the extent possible), and self-monitoring of symptoms; and
- Monitor community transmission levels of respiratory illnesses and ensure employees comply with existing company procedures related to the corresponding community transmission levels.
Masks: Note the points above do not specifically require masks, but do say to monitor community transmission levels and follow your company procedures and CDC guidance. Generally, the CDC says to wear a mask indoors if the levels in your community are high. CDC Guidance based upon community rates Right now, levels are low in most of the country. CDC Map of COVID Rates
We suggest you incorporate the CDC guidance linked above into your policy and then monitor levels periodically in the linked map. If you lift mask requirements, make clear that you will reimplement the mask mandate if rates of new cases in your county or at your company are high. Consider your county, and your own workplace, as your community. Reengage your protocols (including masking) if you have multiple cases of a person testing positive who were at work during the contagious period in a short period of time (e.g. two weeks).
Sick Leave: For general industry employers there is no federal requirement to provide paid leave for COVID-19 absences, but you should not issue discipline if people are absent and have proof a positive test, COVID-19 illness, or exposure to someone who has tested positive. If you are in a state or community that requires paid sick leave, your policy regarding COVID-19 related illnesses should be consistent with those requirements. Be careful not to use no-fault attendance policies to discipline for COVID-19 related absences, since that may be viewed as posing a risk to other workers, by pushing workers with COVID-19 to come to work and expose others.
Policy: Incorporate the above 4 points into your policy. Address the requirement that employees self- monitor and not come to work if they have symptoms of COVID-19, test positive or have had close contact with an infected person. If an employee has had a close contact, and is unvaccinated, they should not come to work, and employers should not allow them to come to work. If vaccinated, an exposed worker may return to work if s/he wears a mask and takes other actions consistent with CDC guidance. CDC guidance vaccinated vs. unvaccinated