The public health emergency that was declared by federal health agencies is scheduled to end on May 11, and President Biden has signed legislation ending the COVID-19 national emergency. But what does that mean for employers?
Ever since the COVID-19 pandemic began, employers and safety professionals have had to struggle with workplace mandates and guidance that were ever-evolving, confusing, and often inconsistent.
Finally, after three long years, there’s a new normal “with COVID-19 becoming an endemic (but still deadly) illness, like the flu,” according to Fiona Ong, an attorney with the law firm Shawe Rosenthal.
Ong goes on to point out that “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.”
With that in mind, here are seven things employers and safety professionals need to keep in mind as the U.S. COVID-19 national emergency ends:
1. OSHA’s COVID-19 guidance
OSHA released guidance regarding COVID-19 in the workplace back in January 2021 and updated that guidance multiple times. While the guidance wasn’t mandatory, following it helped keep employers compliant with the General Duty Clause, which requires employers to “furnish to each of his employee's employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The agency hasn’t updated its COVID-19 guidance since August 16, 2021, after it had adopted guidance outlined by the U.S. Centers for Disease Control and Prevention (CDC) regarding masking, testing, how to handle exposures based on vaccination status and the length of time needed to isolate exposed workers.
That CDC guidance also stated that “other workplace protections, such as barriers and distancing, were not required for vaccinated employees.”
All of that has since been modified by the CDC, but the OSHA guidance, which is based on the CDC’s older advice, is still technically in effect.
OSHA’s COVID-19 webpage states that there’s updated guidance “coming soon” but it doesn’t say when.
In the meantime, attorney Ong said, “Employers should assess their workplace and take reasonable steps to protect workers not only against COVID-19, but other respiratory diseases like the flu.”
2. CDC testing guidance
Current CDC testing guidance recommends immediate testing if symptoms of COVID-19 are present. If the employee was exposed to COVID-19 and doesn’t have symptoms, then the guidance suggests waiting five days after the exposure before testing.
The CDC also recommended that testing be done before individuals come into contact with someone at high risk for severe COVID-19.
That means employers can still require exposed or symptomatic employees to test and isolate in accordance with this guidance.
3. CDC isolation guidance
The CDC’s revised isolation guidance is more streamlined now than it ever was before. Attorney Ong suggests that employers still follow these isolation guidelines for employees who test positive.
That guidance can be found here.
4. CDC exposure guidance
According to recent CDC guidance for individuals exposed to COVID-19, isolation isn’t required for those without symptoms, only for those who actually have COVID-19 as confirmed by testing.
Again, those without symptoms should wear a mask for 10 days when around others or in public, even with a negative test, and test at least five days after exposure, as per the CDC guidance.
“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,” Ong states. “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.”
Attorney Ong further recommends that employers notify their local Board of Health for guidance if an actual COVID-19 outbreak would occur in the workplace.
5. CDC masking guidance
Most mask mandates “at the state and federal level have not been in effect for quite some time,” according to Ong.
Current CDC guidance states, “People may choose to mask at any time,” and employers should support employees who choose to continue to mask.
As stated previously, individuals who have COVID-19 should wear a mask for 10 days following the onset of illness or exposure unless they test negative twice, 48 hours apart with an antigen test.
And employers can maintain protocols that exceed CDC recommendations, but they should also “provide reasonable accommodations as necessary for medical or religious needs.”
However, Ong only recommends imposing mask mandates if the employer “can articulate a legitimate business reason for doing so.”
6. Vaccine mandates
Most private employers aren’t subject to vaccine mandates. However, the “courts continue to battle over the federal government’s mandate for government contractors, but this mandate is not currently being enforced.”
One vaccine mandate that is in effect is the Center for Medicare and Medicaid Services’ regulation requiring Medicaid and Medicare-certified healthcare providers to mandate COVID-19 vaccination for all applicable staff. That one isn’t set to end until November 2024.
State laws could complicate the vaccine mandate issue, with several states having passed laws prohibiting “employers from taking any employment action based on COVID-19 vaccination status, which effectively prevents vaccine mandates.”
If an employer is in a state that doesn’t have such a law then it can choose whether to mandate vaccinations or not. For those that do decide to institute a vaccine requirement, “it is important that they provide reasonable accommodations for medical or religious reasons unless the accommodation results in an undue hardship for the employer.”
Why? Because this has been a “fertile area of litigation over the past several years.”
7. Illness reporting
“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,” according to Ong.
The reason is that it is a health and safety issue since co-workers could be exposed to the disease.
OSHA also requires that employers record workplace illnesses on the OSHA 300 log, and COVID-19 could be considered work-related if the employee is infected as a result of their work duties.
Currently, for COVID-19, OSHA’s 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 hours of knowing both that the employee has been hospitalized and that the reason was a work-related case of COVID-19.
Should an employee die from a work-related case of COVID-19 within 30 days after exposure, that death must be reported by the employer within eight hours of knowing about the death and knowing that the cause of death was a work-related case of COVID-19.
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