Bloomberg Law
Jan. 26, 2022, 9:00 AM

Employers Tackle Moving Targets of Covid-19 Safety, Health Rules

Nancy Inesta
Nancy Inesta
Baker & Hostetler LLP

As the pandemic enters its third year, employers continue scrambling to keep up with the ever-changing Covid-19 guidelines, rules, and legislation implemented by government officials at all levels in the context of vaccination mandates, isolation and quarantine requirements, mask wearing, and boosters.

Like in a game of pickle, employers are frantically going back and forth trying not to get tagged with noncompliance while avoiding the wrath of employees who are fed up with the changing policies and mixed messages about their safety.

As a starting point, this month, employers across the nation were faced with having to determine whether to proceed with mandatory vaccination policies rolled out pursuant to the Occupational Safety and Health Administration’s emergency temporary standard (ETS). The ETS was struck down by the U.S. Supreme Court a mere four days after ETS vaccination policies were required to go into effect.

Many companies had already implemented their policies, adjudicated employee requests for accommodation as required under federal and local laws, and even entered into agreements with third parties to satisfy the ETS testing requirements. In addition, some employees had already started or completed the vaccination process in order to avoid ETS masking or testing requirements. To some degree, the goal of the ETS has largely been achieved.

That being said, the lifting of the ETS provides opportunities to employers to restructure vaccination policies to better fit the goals of each workplace.

Employers Have a Chance to Restructure Policies

For example, employers are evaluating the efficacy and practicality of testing mandates under their vaccination policies, particularly in jurisdictions where employers must reimburse employees for the cost of testing or pay for time spent testing where required by the employer. Whether employers will abandon or maintain vaccination policies has yet to be seen.

Another challenge has been the Centers for Disease Control and Prevention’s about-face on its recommended isolation and quarantine periods, which contemplate that employees may be allowed to return to work in as few as five days.

But the guidance is confusing.

In determining whether an individual may return to work after exposure to or developing Covid-19, factors may include whether the employee’s symptoms are “improving,” which can be ambiguous and difficult to assess, or whether a person tests negative for Covid-19 after five or more days. Notably, timely testing may not be feasible because tests are not readily available or if results are delayed.

Employers should structure logistical requirements as part of any testing policy, including directing employees to make appointments for any future required testing as soon as they are excluded from the workplace or receive a positive test result.

Guidance on where an employee may, or must, obtain a test and what kinds of tests are acceptable also should be provided in order to avoid confusion and unnecessary expense for the employer or the employee.

Quarantine and Isolation Confusion

Despite the confusion surrounding the new quarantine and isolation recommendations, some employers, particularly those that are struggling to maintain a viable workforce, have embraced the new quarantine and isolation timelines, relieved to have employees—many of whom are asymptomatic or have mild symptoms—quickly return to the workforce.

Others have concerns that returning employees too quickly could spark additional outbreaks, and they have decided to exclude Covid-19-positive employees or close contacts from the workplace for longer than what the CDC currently recommends.

Before implementing the CDC’s guidance, employers should also determine whether their state OSHA, state or local health department, or local government has adopted its own isolation and quarantine requirements that may add nuanced or more stringent criteria.

This includes what type of tests are acceptable under various circumstances and whether, or when, at-home tests may satisfy testing requirements. Specifically, in certain jurisdictions, employers may rely on at-home tests only if they are proctored or the process is observed by the employer.

The dispute over isolation and quarantine recommendations has impacted the workforce, which already had grown skeptical about the scientific efficacy of the CDC’s ever-changing Covid-19 policies and is now questioning the agency’s motivation as being pro-business at the expense of the health and safety of American workers.
This is making it even more difficult for employers, which must rely on and implement the CDC’s Covid-19 policies and recommendations to keep their workforce safe, to garner buy-in from their workforce.

Mask Skepticism

Another example of this is the growing skepticism over the effectiveness of masking requirements, including the CDC’s most recent updates this past weekend.

The CDC’s current guidance is to wear the “most protective mask you can that fits well and you will wear consistently.” While the CDC states that “loosely woven cloth products” provide the least protection, it has not eliminated cloth masks as an option. Note that some jurisdictions, however, have eliminated cloth masks as meeting legal requirements.

By way of example, in response to the spread of omicron, Los Angeles County issued an order requiring employers to provide their employees who work indoors and in close contact with others or the public, regardless of vaccination status, with a medical-grade or surgical mask or a higher-level respirator.

Notably, the CDC states that fully vaccinated employees should wear a mask in indoor public spaces only in areas with “substantial or high transmission.” Yet the rise of omicron, which is being transmitted by both vaccinated and unvaccinated individuals, is also calling into question the efficacy of policies that require only unvaccinated workers to wear masks in the workplace.

Employers, however, remain hesitant to take away from fully vaccinated personnel the permission to be mask-free. What is likely next on the horizon: how long “fully vaccinated” will mean only the primary vaccine dose(s) and not also a booster.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Nancy Inesta is a BakerHostetler partner in the firm’s Los Angeles office. She regularly advises and represents clients in connection with employment and traditional labor law issues and is experienced in trial practice in state and federal courts, as well as litigation before administrative bodies.

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