What the End of the COVID-19 National Emergency Means for Employers
President Biden has signed legislation that ends the COVID-19 national emergency. Separately, the public health emergency that was declared by the U.S. Department of Health and Human Services will end on May 11, 2023. The end of these two emergency declarations have impacts on certain employee benefits (which is outside the scope of this article) – but what does it mean for employers beyond that?
For the past three years, employers have struggled with changing, inconsistent, and confusing mandates and guidance regarding leave, vaccinations, masking, and other workplace actions. At this time, we have emerged into a “new normal,” with COVID-19 becoming an endemic (but still deadly) illness, like the flu. And much like the flu, there are certain precautions that employers may still take. In addition, there may also be legislative or regulatory mandates that linger beyond the end of the national and public health emergencies.
OSHA COVID-19 Guidance – “Update Coming Soon.” As employers may recall, the Occupational Safety and Health Administration issued guidance for the workplace in January 2021, which was updated several times. The guidance is not mandatory, but compliance with such guidance would certainly establish an employer’s compliance with OSHA’s General Duty Clause, which requires employers to protect workers from any serious hazards in the workplace.
The last iteration of the guidance, which we discussed in detail in an August 16, 2021 E-lert, supported employer vaccine mandates, paid vaccination leave, sanitation/cleaning, improved ventilation, and supplying/encouraging face coverings in the workplace, particularly in areas of substantial or high transmission. It adopted the Center for Disease Control and Prevention’s (CDC) then-current guidance on masking and testing for symptomatic employees and those who had close contact with infected individuals, with different recommendations based on vaccination status. The CDC’s guidance on isolation of infected individuals was also adopted. The Guidance also provided that other workplace protections, such as barriers and distancing, were not required for vaccinated employees.
At this time, the CDC has modified its guidance on testing, masking, and isolation. Although the OSHA guidance is still technically in effect, the OSHA website states that an update to its guidance is “coming soon.” In the interim, employers should assess their workplace and take reasonable steps to protect workers not only against COVID-19, but other respiratory diseases like the flu. We discuss some of these steps below.
CDC’s Testing Guidance. In its current testing guidance, the CDC recommends testing immediately if there are symptoms of COVID-19. If the individual was exposed to COVID-19 and does not have symptoms, the CDC suggests waiting at least 5 full days after exposure before testing. It also recommends that individuals test before coming into contact with someone at high risk for severe COVID-19.
Employers may require employees who are symptomatic or who were exposed to COVID-19 to test and isolate in accordance with the CDC’s guidance.
CDC’s Isolation Guidance. At this time, the CDC’s guidance on when to isolate has been significantly streamlined from earlier guidance. Employers can and should follow the CDC’s isolation guidelines for those testing positive.
Those testing positive should stay at home for at least 5 days and isolate from others in the home, wear a high-quality mask if they need to be around others and in public through day 10 (unless they test negative twice, 48 hours apart, with an antigen test), and refrain from travel through day 10.
- If there were no symptoms, isolation may end after day 5.
- If there were symptoms, isolation may end if the symptoms are improving and the individual has been fever-free for 24 hours without medication, as early as day 5.
- If the individual had moderate illness (meaning shortness of breath or trouble breathing), they should isolate through day 10.
- If the individual had severe illness (requiring hospitalization) or a weakened immune system, they should isolate through day 10 and consult their doctor.
CDC’s Exposure Guidance. According to the CDC’s guidance for those who were exposed to COVID-19, isolation is no longer required for exposures without symptoms – only for those who actually have COVID-19 (apparently as confirmed by testing). Those who were exposed without symptoms should test at least 5 days after exposure. The CDC recommends that they wear a mask for 10 days when around others or in public, even if they test negative after 5 days.
Obviously if the person develops symptoms, they should test immediately and, if positive, follow the isolation protocol.
Some employers may wish to require those who were exposed to stay out of the workplace for the 5-10 day period. While employers may choose to impose greater restrictions than the CDC recommends, they should be thoughtful about the impact of such a requirement on employees. If the employer does not provide paid leave for such circumstances, this may be economically harmful to the employee. In addition, it is important to ensure that any such restriction is applied consistently, in order to avoid discrimination claims.
If there is an outbreak of COVID-19 at the workplace (yes, it’s still happening), we recommend that the local Board of Health be contacted for further guidance. In all likelihood, the Board of Health may refer the employer back to the CDC guidance, but that will give the employer additional grounds for requiring testing and masking, since some employees may be resistant to such requirements.
CDC’s Masking Guidance. The multitude of mask mandates at the federal and state level have not been in effect for quite some time. The CDC’s mask guidance notes that “People may choose to mask at any time,” and employers should support those employees who choose to continue to mask. According to the CDC, those who are in medium or high community levels of COVID-19 should mask if they are at high risk for severe illness.
As noted above, those who have COVID-19 should wear a mask for 10 days following the onset of illness, unless they test negative twice, 48 hours apart with an antigen test. Those were exposed to COVID-19 should wear a mask for 10 days following the onset of illness or exposure, regardless of any negative test result.
As we previously discussed in a blog post, employers may implement and maintain protocols that exceed what the CDC recommends. Thus, employers may require masks in the workplace, but should provide reasonable accommodations as necessary for medical or religious needs. They also should be prepared for pushback from employees. At this time, however, we suggest that employers only impose mask mandates if they can articulate a legitimate business reason for doing so.
Paid Leave. At this time, there are no federal laws that require private employers to provide leave specifically to obtain a COVID-19 vaccine or to recover from COVID-19. The Families First Coronavirus Response Act’s COVID-19 leave mandates expired at the end of December 2020, and the voluntary leave benefits expired in September 2021. However, a number of states passed laws that required employers to provide vaccine leave, COVID-19 leave, or public health emergency leave. While many of the COVID-specific leave mandates have now expired, several are still in effect – at least for now. In addition, more general public health emergency leaves will continue to apply going forward. Thus, it is important that employers check their jurisdiction for any continuing COVID-19-related leave laws.
We remind employers that an increasing number of states and local jurisdictions have other leave laws that will cover COVID-19, such as sick and safe leave or general leave. Additionally, the employee’s or family member’s COVID-19 illness may meet the eligibility requirements for leave under the federal Family and Medical Leave Act, analogous state family and medical leave laws, or state paid family and medical leave benefits programs.
Absent legal leave mandates, employers may choose whether to provide paid leave for COVID-19 specifically – and, we suggest, other illnesses like the flu – for their employees. Many employers have implemented paid sick leave or PTO policies that may be used for illnesses like COVID-19, and employees should be encouraged to use such leave when they are sick in order to prevent the spread of the illness in the workplace.
Vaccine Mandates. At this time, most private employers are not subject to vaccine mandates, and the Biden Administration has announced that it is ending the (never-enforced) mandate for federal contractors as well as the Center for Medicare and Medicaid Services’ regulation requiring Medicaid and Medicare-certified healthcare providers to mandate COVID-19 vaccination for all applicable staff (as discussed in our November 8, 2021 E-lert).
State laws may complicate the situation. A number of states have passed laws that prohibit employers from taking any employment action based on COVID-19 vaccination status, which effectively prevents vaccine mandates. We also note that many states require flu vaccinations for healthcare employees. But absent such laws, employers may choose whether to mandate COVID-19 (and flu) vaccinations or not.
If an employer chooses or is required to mandate vaccines, it is important that they provide reasonable accommodations for medical or religious reasons, unless the accommodation results in an undue hardship for the employer. This has been a fertile area of litigation over the past several years. The argument that the unvaccinated status of an employee poses a direct threat in the workplace has less weight now than in the height of the pandemic, and it is likely that the use of masks or face coverings in lieu of vaccination may be deemed an appropriate accommodation (as it has been for the flu).
Reporting Illness. There are two different reporting requirements at issue here – what employees should report to the employer, and what the employer needs to record and/or report to OSHA.
Employers can and should require employees who are working in-person to report when they have symptoms of COVID-19 (or flu, for that matter) or if they test positive. This is a health and safety issue, since co-workers may have been exposed to the disease. Employers could also require employees to report exposures, and require those employees to follow the CDC’s guidance on masking and testing during the 10-day post-exposure period.
As for OSHA recording, OSHA mandates covered employer record certain work-related injuries and illness on their OSHA 300 log. COVID-19 may be a recordable illness if the employee is infected as a result of performing their work-related duties. It is recordable if there is a confirmed COVID-19 case, the case is work-related, and it meets the general recording criteria (e.g. medical treatment beyond first aid, days away from work).
With regard to OSHA reporting, employers must report work-related hospitalizations and deaths within a certain timeframe. For COVID-19, the reporting requirement applies if an employee is hospitalized within 24 hours of exposure to COVID-19 at work, and the report must be made within 24 hour of knowing both that the employee has been hospitalized and that the reason was a work-related case of COVID-19. If an employee dies from a work-related confirmed case of COVID-19 within 30 days after exposure, the employer must report the death within 8 hours of knowing both that the employee dies and the cause was a work-related case of COVID-19.
As we have said since the beginning of the COVID-19 pandemic, the workplace guidance has been constantly changing. We will keep you updated on any developments, including the forthcoming OSHA update.