Texas is now open for business–100% and without masks. On March 10, 2021, Executive Order GA-34 went into effect, lifting the COVID-19 mask mandate in Texas and increasing capacity of all businesses and facilities in the state to 100%. Except for indoor arenas and K-12 schools, Mississippi has followed suit. Other states have also recently eased mask mandates, increased occupancy limits on restaurants and bars, and rolled back restrictions on stadiums and theaters, while warnings from US infectious-disease experts abound.
It may be tempting for businesses to fully open as COVID-19 restrictions–some of which will soon see their one year anniversary–are pulled back. What should employers keep top-of-mind if the COVID-19 health and safety restrictions in their state or locality are loosened or rescinded?
Employee health and safety lawsuits are going strong
The vast majority of COVID-19 related employment lawsuits stem from the health and safety concerns of employees who are afraid of reporting to work. Where states have rolled back restrictions, these lawsuits are likely to continue or increase. Employees have alleged wrongful termination, retaliation, and whistleblower claims. In addition, where employees allege they have contracted COVID-19 at work, some employers have faced personal injury–and even wrongful death–claims.
Employers who continue to follow the most stringent recommended guidance from either the CDC, OSHA, or any applicable state or local health regulations can assert their adherence to these precautions as a defense to claims of an unsafe workplace. Employers who instead eliminate masks and social distancing from their protocol may lose the defense.
CDC and OSHA still recommend masks-and OSHA enforcement will likely ramp up
Despite states opening up, CDC and OSHA workplace guidance still emphasizes the importance of people wearing a mask, social distancing, and practicing good personal hygiene, including frequent hand washing. Though OSHA was criticized under the prior administration for its light enforcement against employers’ pandemic-related health and safety violations, President Biden issued an executive order his second day in office focusing on protecting workers from COVID-19 under OSHA. On March 12, 2021, OSHA launched a national emphasis program focusing enforcement efforts on companies putting the largest number of workers at serious risk of contracting the virus–and OSHA has strongly encouraged OSHA state plans to adopt the program. Not surprisingly, an uptick in OSHA enforcement actions is expected under the Biden Administration. Even if states do away with mask mandates and occupancy limits that allowed for social distancing, employers should follow OSHA guidelines to avoid OSHA violations or enforcement actions. Just because Texas (and other states) say businesses can open at 100% capacity and without masks, businesses should consider following the more stringent CDC and OSHA guidelines to best protect their workforce and mitigate against the chance of OSHA enforcement actions.
Employees, customers/clients, and visitors could become ill, affecting operations and reputation
COVID-19 is still present and spreading–and with new variants suspected of being even more contagious than previous versions, employees, clients/customers and other onsite visitors may be more likely to become ill from the virus when masks are no longer worn. Though perspectives on the effectiveness of masks differ, the CDC recently issued a report finding that in counties where states required masks, COVID-19 cases and death rates slowed. Conversely, in counties where states allowed on-site restaurant dining (where people removed masks to eat), cases and death rates increased. Employers should take this and other applicable studies into consideration, and how the employer’s operations or good reputation may plummet if employees or clients/customers contract COVID-19 from a site where masks and social distancing are not required.
Employees may be uncomfortable, which could lower morale and productivity
Employee health and safety concerns are behind the multitude of COVID-19 related claims against employers by employees. Employees who fear contracting COVID-19 at work because of lack of masks or social distancing may not always sue or file a complaint with OSHA, but they may feel unsupported and unprotected, which could lead to lowered workplace morale and inevitably, lower productivity and/or loss of talent.
Regardless of measures states are taking to open up, employers should be certain that their course of action–whether lifting restrictions along with their applicable jurisdiction, or keeping restrictions in place–minimizes liability. For help navigating your employment law needs, contact your Baker McKenzie employment attorney.