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Employers, employees’ obligations during COVID-19 pandemic

CDC urges vaccinated people to wear masks indoors: What this means for employers

The Centers for Disease Control and Prevention has revised its recommendations for fully vaccinated individuals, and the change could pose new headaches for employers.

The CDC on Tuesday said fully vaccinated individuals in COVID-19 hot spots should wear masks when indoors. The recommendation, which comes amid a surge in cases due to the Delta variant, is a reversal of its May announcement that said masks were no longer needed for those who were fully vaccinated.

The new guidance says fully vaccinated individuals should wear a mask indoors in public places in areas of substantial or high transmission. Employers can determine their area’s transmission status using this tool. According to the CDC’s map, most of the Southeast — including all of Florida — is currently subject to the new recommendations. The Northeast has the lowest concentration of affected areas. As of today, 63% of U.S. counties are subject to the recommendations.

The change could have significant ramifications for employers as the Occupational Safety and Health Administration’s COVID-19 guidance has generally dovetailed with the latest CDC recommendations. OSHA has not yet confirmed whether it will update its guidance or disclosed a timeline for an update, which could leave employers in another extended state of limbo. But that’s just one of many potential challenges that could result for businesses.

Martha Boyd, a shareholder at Baker Donelson Bearman Caldwell & Berkowitz PC, said employers would be well-served to consider the CDC’s guidance as something OSHA will expect to see when it inspects a workplace.

Employers probably need to consider that new guidance as modifying what OSHA previously issued, even before OSHA has a chance to revise its own guidance,” Boyd said.

“The bottom line here is this: The CDC says people should wear masks indoors, vaccinated or not. OSHA can easily find that an employer breached its obligation to keep employees safe under the general duty clause by failing to mandate universal masking in the workplace at this point. I would say that employers whose employees work close together or work with the public, such as manufacturing facilities, groceries/retail, and hospitality, probably ought to consider requiring masks for everyone again.”

If OSHA continues to follow CDC’s lead, employers in COVID-19 hot spots could be recommended to require and enforce mask rules at their businesses, creating another potential disconnect between employers and some workers, who were already sparring over vaccination rules.

“No one is going to want to do this, especially when we’ve tasted a few months of freedom,” Boyd said. “And unfortunately, this may have the effect of disincentivizing employees who were considering getting vaccinated simply to avoid having to continue wearing a mask indefinitely. The message to employees has to be this: it’s temporary. We’ve done it before. We can do it again. It protects us, it protects our co-workers, and it protects their family members.”

Mark Neuberger, of counsel at Foley & Lardner and a member of the firm’s labor and employment practice group, said the situation will put employers in a tough spot, especially since they were hoping to get people back in the office.

“Employers need to study the science and come up with protocols that are right for their particular situation and culture,” Neuberger said.

As we’ve noted, OSHA’s recommendations for non-health-care employers don’t include specific legal requirements, but experts say companies should follow OSHA recommendations to ensure compliance with the general duty clause, which requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

“If an employer is not evaluating their workplace for potential COVID-19 exposure, they’re not providing a safe work environment for employees,” Alka Ramchandani-Raj of global employment law firm Littler said in a recent interview about workplace safety guidelines for COVID-19. That interview preceded the new CDC guidance.

Ramchandani-Raj said it is employers’ responsibility to constantly re-evaluate their environments. That would include monitoring new variants, how they could affect workers and what the employer could do to ensure safety.

The CDC’s new recommendations come as vaccine mandates are on the rise — particularly for government and health care workers.

Employment law experts previously said OSHA’s June guidance created de facto incentives for private employers to mandate the vaccine because it essentially freed them from mask or social distancing requirements if their entire company was vaccinated. Tuesday’s CDC recommendations could eliminate those incentives while also leading to friction with vaccinated employees who don’t want to wear masks.

Additionally, with the CDC’s new mask recommendation focusing only on COVID-19 hot spots, some companies with multiple locations could be forced to navigate an evolving patchwork of recommendations as cases ebb and flow in different states and cities.


Employers, employees’ obligations during COVID-19 pandemic

By Emmanuel Zvada

EMPLOYERS are different, we understand, but during this pandemic there are employers who need a third eye for them to uphold proper conduct which safeguard their employees.

Some employers can recklessly and deliberately fail to protect employees against exposure to coronavirus which results in breach of employer’s duty of care through gross negligence. Businesses are required to comply with health and safety legislation. Failure to comply will result in such businesses facing criminal liability.

Can COVID-19 be transmitted at the workplace?

As the number of reported cases of the novel coronavirus continues to rise, employers are increasingly confronted with the possibility of an outbreak at the workplace.

I think vaccination against the coronavirus will in time result in an end to the pandemic, but in the meantime all sections of society including businesses and employers must play a role in stopping the spread of the disease.

COVID-19 spreads in various ways and exposure can occur at the workplace, while travelling to work, during work-related travel to an area with potential transmission.

Employer’s obligation

Employers are obligated to maintain a safe and healthy work environment for employees, are also subject to a number of legal requirements to protect workers. For example, employers must comply with the Occupational Safety and Health Act.

Employers must ensure that the workplace is safe and without risk to health. All employers must ensure that their employees are be provided with adequate protective clothing so that they are not exposed to the pandemic.

Due to the way COVID-19 spreads, it may be difficult for one to claim, let alone, prove that they contracted the virus while at work.

However, employers are generally reminded of their statutory and common law duty of making the work environment safe so that employee can provide their labour in a safe environment.

Employers should instruct workers who are infected, unvaccinated workers who have had close contact with someone who tested positive to COVID-19 and all workers with COVID-19 symptoms to stay home to prevent or reduce the risk of transmission of the virus that causes disease.

If an employee is infected by COVID–19 at work, what must an employer do?

The employer should notify the health authorities of the development. The employer must then direct anyone who was in contact with the infected employee to be in self-isolation at home so as not to affect others.

After such a reported incident, the employer must have the premises thoroughly sanitised.

According to Article 16 of Occupational Safety and Health Convention, 1981 (No 155), employers have the overall responsibility of ensuring that employees have protective and preventive clothing to minimise occupational risks.

If the employer fails to do this, he may be liable for compensation of the employee if the employee can prove that the employer was responsible for his illness (including COVID-19-related illness)

Employee rights during COVID-19

Employees or their representatives have a right to information on measures taken by the employer to ensure occupational safety and health, and the right to be trained in occupational health and safety issues.

Let’s say the employee is affected by the virus, he or she is entitled to apply for sick leave which is supported by a certificate signed by a registered medical practitioner.

The employee should immediately notify the health authorities and his/her employer through professional communication channels.

The employee is entitled up to three months sick leave on full pay. If an employee has used up these three months in any one-year period, the employee may apply for further sick leave of up to three months on half pay.

However, at the end of such sick leave period, the employer is entitled to terminate the employment contract.

Sickness prevention at the workplace

Whenever a communicable disease outbreak is likely, employers required to take precautions to keep the disease from spreading at the workplace.

It is recommended that employers have a written policy and response plan that covers communicable diseases that can be transmitted at the workplace.

More so, employers can require employees to stay at home if they have signs or symptoms of a communicable disease that poses the threat of transmission at the workplace.

When possible, employers can consider allowing employees to work remotely and they can require employees to provide medical documentation so that they can return to work.

COVID-19 and business continuity

Business continuity is the capability of an organisation to continue delivering the products or services at acceptable and normal levels following a disruptive incident. In this case most businesses are currently experiencing significant disruption to their operations due to the COVID-19 crisis.

Workplaces should develop action plans to prevent and mitigate COVID-19 as part of the business continuity plan.

Workers and their representatives should be consulted and should participate in the development, monitoring and updating of the workplace COVID-19 business continuity plan.

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19.

Even though vaccination against COVID-19 will in time bring the current pandemic to an end, it is important to draw up or update crisis contingent plans that will help prepare them should any such events occur in the future.


Changing Mask Guidance Confuses Employers and Workers on Safety

Liisa Luick worked through the height of the Covid-19 pandemic lock down as a sales associate in the men’s department at the Macy’s department store in Lynnwood, Wash. Throughout that time she’s routinely masked-up even after face coverings became optional there.

Recalled to work in June 2020, Luick said in a phone interview that she and her colleagues “came back to a mask requirement that was never really enforced.” “We kept good practices and we tried to keep distance between us and the customers, there were certainly a segment of customers who were not going to mask.”

The vaccines’ apparent efficacy has dialed down the fear for Luick and her colleagues, she said, “but every day we run into people that say they’re not vaccinated and we run into people in the community who flat out have the virus.”

And there’s the rub. With coronavirus mutations spreading, particularly among those who decline inoculation, employees like Luick and others across the U.S. are receiving ambiguous signals from their employers about whether to don protective face coverings. And it’s not as though the employers have one-size-fits-all answers either.

Asked for the company’s guidance, Macy’s Inc. spokeswoman Blair Rosenberg pointed to the retailer’s Covid-19 worker safety policies, which state that all workers are provided masks. “Depending on state or local mandates, they may be required to wear them at all times, or may do so by choice.” Other national chains, including Starbucks Corp., Target Corp., and Walmart Inc., have adopted similar stances.

The Centers for Disease Control and Prevention

said Tuesday it is updating its guidance on indoor mask-wearing for vaccinated individuals along similar locational lines, based on virus infection rates. That agency’s action came after Los Angeles County became the first county in the nation to require people to wear masks in public again beginning July 17. New Orleans followed with an in-door mask advisory July 21, and on the same day Las Vegas’ Clark County Commission issued an emergency mandate for all indoor government workers to don masks.

Some management-side attorneys say employers and workers have been confused over whether to impose mask rules and that the federal Occupational Safety and Health Administration has been slow to adopt changes. “Practitioners like me see it akin to sleeping next to an elephant, anytime it rustles it wakes you up,” said Courtney Malveaux, a workplace safety lawyer with Jackson Lewis P.C. in Richmond, Va.

“States went all over the place,” after the CDC said in May that fully vaccinated people no longer needed to mask up while indoors, said Edwin Egee, vice president of government relations for the National Retail Federation. “In Oregon our members were required to know the vaccination status of employees as well as customers—that’s a recipe for disaster. Meanwhile in Montana we were precluded from asking employees about their vaccination status.”

Masking Uncertainty

The federal OSHA’s masking recommendations also have evolved as infection rates rose and fell. While the agency never issued an emergency temporary standard with concrete workplace rules regarding the virus for all workers, it did for private health-care providers. OSHA also rolled out a National Emphasis Program in March targeting industries that posed the highest risk of mass infections, like the health-care, meatpacking, and warehousing industries.

But earlier this month, the agency revamped that March NEP “due to the issuance of its emergency temporary standard for COVID-19 in healthcare” and refined its focus to programmed inspections in the health-care and other non-health-care industries, like meatpacking and restaurants. A search of OSHA’s Covid-19 complaint database shows that since the start of the pandemic, at least 4,754 workers have made complaints to the federal safety regulator about the lack of mask rules in the workplace.

OSHA spokeswoman Denisha Braxton said the agency updated that program “to better align with the overall reduction of COVID-19-related risks in many industries and the CDC’s latest COVID-19 guidance.”

“The agency also issued recommendations to assist employers in preparing their workplaces to minimize transmission of the virus and help make determinations about using masks and other controls,” she said in an email. OSHA is reviewing the CDC’s Tuesday guidance, Braxton added.

The lack of consistent, uniform federal masking guidance is itself a problem, said attorney James J. Sullivan, a former chair of the Occupational Safety and Health Review Commission. Employers look to state and local regulations because the U.S. government has “punted” on the decision, he said.

Many employers prefer when local and state governments issue mask mandates so they aren’t left to make up their own face-covering policies, said Sullivan, now an attorney at Cozen & O’Connor. “If a private employer resides within a local government that mandates mask, they are saying ‘great, you took this issue off my back,’” he said.

Commercial Scene

Many U.S. businesses have been handling mask rules largely according to local and state mandates.

Target stores no longer require fully vaccinated customers and workers to wear masks, except where it’s required by local ordinances. “Face coverings continue to be strongly recommended for guests and team members who are not fully vaccinated and we continue our increased safety and cleaning measures, including social distancing, throughout our stores,” spokeswoman Lauren Frank said in an email.

Walmart adopted that policy, too, but with an additional incentive. The company offers cash bonuses to workers to get vaccinated, spokesman Tyler Thomason said via email.

But Peter Naughton, a 45 year-old Baton Rouge, La., Walmart associate, said his company doesn’t enforce its mask rule and the only way to do so is for the state government to mandate requiring face coverings for all. “They’re not keeping us safe. They’re putting us in danger,” he said, adding that Walmart could keep its workers safe by hiring additional personnel to enforce a mask rule.

Thomason didn’t immediately respond to a request for comment on Naughton’s complaint.

Starbucks this month decided that “fully-vaccinated partners who disclose now have the option to remove their facial covering while working,” said Jory Mendes, a company spokesperson.

“I think the Delta variant is a sort of wake-up call in the sense that everyone wants this virus to go away, but the fact is until there is not a threat to the well-being of workers, measures need to be put into place,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. Masks should continue to be a part of employers’ safety plans, she added.

“We firmly believe that every business needs to develop a comprehensive plan to minimize risks to workers in every workplace,” Goldstein-Gelb said.

Communicating with Workers

“We’ve seen concern in how are people going to feel coming back to the workplace,” said Kristin R.B. White, a safety attorney at Fisher Phillips LLP. “I advise firms to have a lot of communication with workers, increase training, talk about safety protocols and the new policies. If it makes them more comfortable to wear a mask, it’s their right to do so.”

Communicating with employees about their comfort level is imperative, White said, because for some workers wearing a mask “may not always be possible.” She warns however that open lines of communication can create liabilities for an employer, “if you’re asking workers about concerns and don’t take any of them into account, there could be some risk there as you’re rolling out your own policy.”

The challenge will be determining policies to deal with the virus as more workers return to work and the Delta variant proliferates across the U.S., said Jackson Lewis’ Malveaux.

“You have people who are resistant to the vaccine and larger employers have a difficult time determining who is and isn’t exempt from a face cover, so they’re not out of the woods,” he said. “I think that’s the bigger concern.”

Malveaux said he recommends companies stay attuned to OSHA recommendations to avoid worker complaints to the agency. What does not help is a lack of inter-agency cooperation in providing guidance to employers.

“This issue can also hinge on several protected categories like disabilities, and protected status and religion,” he said.

“There are also vaccinated people who still need to wear face masks or because they just choose to. There are unvaccinated people who don’t wear face coverings and that leads to a lot of anxiety, as well as some people, even if they’re unvaccinated, can’t wear a face covering because it presents a hazard, for instance people who need to read lips due to a hearing impairment,” Malveaux said. “There are landmines everywhere.”