The Road Ahead Following the April 10 End of the National Emergency
We have all grown accustomed to hand sanitizer, 6-feet distance markings in hallways, face masks–and the back and forth of surging and waning COVID-19 levels in the workplace and the community. But with President Biden’s April 10 termination of the COVID-19 national emergency, can these pandemic mainstays–and employers’ pandemic policies and procedures–finally be relegated to a distant memory? Should they be? As Dr. Anthony Fauci said in a recent interview, “Everybody wants this outbreak behind us.”
Mapping the Road Forward
With little fanfare, on April 10, President Biden quietly signed a GOP-led resolution terminating the COVID-19 national emergency. Separately, on May 1 the Biden Administration announced an end to the federal COVID-19 vaccination requirements for federal employees, federal contractors, and international travelers on May 11, the same day the COVID-19 Public Health Emergency ends. The US Department of Health and Human Services and the US Department of Homeland Security also announced they will start the process to end vaccination requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border.
So can employers throw out all of their COVID-19 policies and procedures? Not quite.
OSHA’s “General Duty Clause” Still Applies
The Federal Occupational Safety and Health Act’s (OSHA) General Duty Clause compels employers to provide employees with a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” and creates liability for employers who fail to take reasonable steps to prevent or abate a recognized serious hazard in the workplace. This general duty applies with respect to COVID-19, even though there are no generally applicable federal OSHA COVID-19 workplace safety rules. Interestingly, a major union lobbied the White House just yesterday to publish a non-emergency COVID-19 workplace safety rule as way of protecting employees from dangers in the workplace.
At its discretion, OSHA can issue citations to employers who take a completely hands off approach to COVID-19 and the workplace. However, we’re aware of just a handful of OSHA citations for COVID-19-related violations of the general duty clause, and none so far in 2023. Thus, the risk of an OSHA citation may be low–but cannot be completely ruled out.
Potential OSHA penalties are:
- $11,162 to $156,259 per violation for willful or repeated violations
- $1,116 to $15,625 per violation for serious violations
- $0 to $15,625 per violation for other-than-serious violations
Accordingly, employers should remain mindful of their general duty and consider how to continue providing a safe and healthful workplace, including by keeping up to date on the latest public health guidance. Since companies can still face disruption due to work absences or intermittent remote working due to employee or family illness, employers may still want to consider keeping relatively non-intrusive preventative measures like self-screening for symptoms, hand sanitizer and masks in close quarters around.
Vaccination Policies are a Choice, But Employer Obligations Remain
Since employers’ authority to implement mandatory COVID-19 vaccination policies never derived from federal or state public health emergency declarations, the termination of the national emergency (and the lifting of other pandemic declarations) does not directly impact an employer’s ability to require vaccination. Employers have options: they can permissibly end or continue their COVID-19 vaccination requirements, subject to state or local requirements.
Employers choosing to end their COVID-19 vaccination requirements and make COVID-19 vaccination voluntary should remember their “general duty” obligation under OSHA to provide a safe and healthful workplace, as well as any state law COVID-19 workplace mitigation requirements (including Cal/OSHA’s COVID-19 Non-Emergency Regulations, which we discuss in more detail below).
Employers continuing to enforce their COVID-19 vaccination requirements should continue to ensure they engage in the interactive process when employees request exemptions for religious, disability or medical reasons, and grant accommodations / exemptions in a neutral manner. (For more, see our blog and video chat where we discuss covering accommodations under mandatory vaccination policies.) But employers should keep in mind that they may soon have a more difficult time denying an employee’s religious accommodation request. The US Supreme Court recently heard oral argument in Groff v. DeJoy, in which the Court will decide whether the “more than de minimis” cost test is the proper standard for determining “undue hardship” under Title VII. If the standard changes, and as the public health and workplace safety risks associated with COVID-19 diminish, employers may find that “undue hardship” denials do not warrant the headache of enforcing the policy.
State and Local Law: Be Sure to Check These Areas
COVID-19 Paid Leave
Throughout the COVID-19 pandemic, a number of state and local governments passed COVID-19 paid leave rules. While many of these laws expired (e.g. California’s “exclusion pay”), certain jurisdictions (e.g. New York) continue to impose certain COVID-19 vaccination and isolation paid leave requirements.
Check whether any COVID-19 paid leave laws apply to your employees, paying special attention to any remote employees located outside the company’s usual place of business.
Close Contact Notification Requirements
Employers should also check whether they are still subject to laws or guidance requiring them to notify workers if they’ve been exposed to COVID-19 in the workplace.
For instance, under Cal/OSHA’s COVID-19 Non-Emergency Regulations (see more here), employers are still required (through February 3, 2025) to notify employees and independent contractors who had a close contact at the worksite with a person who tested positive for COVID-19 of such close contact. And under California Labor Code Section 6409.6, California employers must notify employees of potential exposure to COVID-19 in the workplace (either by posting a notice, or by sending written notification) in accordance with the statutory requirements (found here). This obligation remains in effect until January 1, 2024.
Double-check that your notification policies and procedures comply with applicable law and keep them handy in case of potential exposures in the workplace.
Recordkeeping and Reporting
Depending on where employees are working, employers still may be required to report COVID-19 cases and keep COVID-19 related records. For instance, under Cal/OSHA’s COVID-19 Non-Emergency Regulations, employers must meet several reporting and recordkeeping obligations through February 3, 2026, including:
- recording and tracking all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, date of last day at the workplace and date of positive COVID-19 test; and
- reporting the information to the local health department, Cal/OSHA, the Department of Public Health, and the National Institute for Occupational Safety and Health immediately upon request.
Stay up-to-date on current law and public health guidance to ensure compliance with remaining pandemic-related record-keeping and reporting requirements, and to determine when it’s safe to discontinue such practices as requirements sunset.
A Closer Look at Remaining Obligations in Two Jurisdictions: California and New York
As we explained above, California still has close contact notification, recordkeeping and reporting requirements. But there’s more. In addition to the above, under Cal/OSHA’s COVID-19 Non-Emergency Regulations, employers must continue to meet these obligations through February 3, 2025:
- Make face coverings available to employees
- Make COVID-19 testing available (at no cost and during paid time) to employees following a “close contact.” Close contact means:
- for indoor airspaces of 400,000 or fewer cubic feet — sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period
- for indoor airspaces of greater than 400,000 cubic feet — being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period
- Exclude positive COVID-19 cases from the workplace in accordance with California Department of Public Health guidelines (available here)
- Either: (1) maintain a standalone COVID-19 Prevention Plan; or (2) include COVID-19 mitigation procedures in their existing Injury and Illness Prevention Program
Employers who violate Cal/OSHA rules face penalties of $500 to $25,000, subject to various reductions. And relative to federal OSHA, Cal/OSHA has enforced its rules more stringently. While Cal/OSHA has not yet provided citation statistics for 2023, the agency issued over 50 citations / penalties for COVID-19 violations in December 2022 alone. These penalties ranged from $130 to $12,600.
Importantly, note that California employees may be able to assert Private Attorneys General Act claims for non-compliance with Cal/OSHA’s COVID-19 workplace rules. PAGA authorizes employees to file lawsuits to recover penalties for themselves and the state for alleged California Labor Code violations. These lawsuits can result in significant liability depending on the number of violations, number of employees, and the length of litigation (i.e. attorneys’ fees).
Thus while federal legislation ended the national emergency, for California employers, it’s not time to bid adieu to pandemic-related restrictions quite yet. Covered California employers should continue to comply with Cal/OSHA’s COVID-19 regulations to avoid penalties and the possibility of PAGA claims.
New York employers also have remaining COVID-related obligations. Under New York’s HERO Act, employers must:
- adopt an airborne infectious disease prevention plan; and
- implement the plan when the New York Health Commissioner designates a new airborne infectious disease.
(For more, see our prior blog here.) Fortunately for employers, no disease currently carries an “airborne infectious disease” designation (COVID-19’s designation ended in March 2022). This means employers do not need to actually implement their HERO Act plans. That said, employers still have an obligation to adopt a prevention plan–and New York provides a model prevention plan for employers (but note that it goes beyond what is legally required for employers).
Failure to adopt an airborne infectious disease prevention plan may result in the New York Department of Labor assessing a civil penalty of at least $50 per day that the employer does not have an adopted plan. Employees can bring a private right of action to enforce the HERO Act. But employees are required to first give their employer 30 days’ notice of the alleged violation to provide their employer an opportunity to cure.
What about all our pandemic policies, procedures and forms? Time to recycle?
Though we all hope not, we cannot say for certain whether another variant or surge will come along requiring employers to once again reinstate COVID-19 policies and procedures they would prefer to do away with. Instead of discarding them, hold onto certain forms and policies, including:
- Documents for reasonable accommodation requests under the ADA and Title VII (and analogous state / local law), for both COVID-19 related and non-COVID-19 related requests–including request forms, request determination notifications, a guide to assist managers, supervisors and HR through the interactive and determination process, and response letter templates (both for granting accommodations and denying them). Having these forms handy will be helpful, especially since we expect to see requests for accommodation continue.
- Reopening plans or checklists. Thiswill help you remain agile in the event of more waves or surges.
- Employee and visitor symptom / health check self-certification forms, requiring respondents to self-certify a lack of COVID-19 symptoms, close contact or diagnosis. These may again come into play if there’s an increase in COVID case levels–or another similar health emergency.
- Protocol for when an employee or visitor tests positive for COVID-19. This is a great reference should an unexpected outbreak occur. Be sure to update this with applicable CDC, state and local requirements and guidance as necessary.
Check back for our pandemic “reference binder” (coming soon)!
The labor and employment team at Baker McKenzie is (happily) preparing a “reference binder” for the pandemic. Like a transactional closing binder, this will be our final record of the 2020 COVID-19 pandemic, bringing together our most commonly-referenced and generally-applicable employment guidance for getting through unforeseen crises. While we sincerely hope never to need it again, we’ll share it here in short order to save (and hopefully never need).