Employers are beginning to question what to expect in the coming months as rigid Covid-19 guidelines for workplace safety are eased, legal experts say.
In a surprise move on Sept. 23, the U.S. Centers for Disease Control and Prevention removed its universal masking requirements in health care settings, creating uncertainty for employers still waiting for a permanent COVID-19 standard for health care workers. The US Occupational Safety and Health Administration had indicated it would issue a standard by the end of the year.
OSHA has not updated any of its guidelines for covid-19 since August 2021 and has no update on the process for creating the health care standard, an agency spokesperson wrote in an email. An interim safety standard for health care workers was in place for six months in 2021, as permitted by law.
Employers in other environments also struggle with the lack of demands.
“That’s a problem … there’s not a lot of guidance that’s been given to employers at all,” said Adam Young, a Chicago-based partner at Seyfarth Shaw LLP.
The approach in some ways is to “figure it out on your own,” he said, adding that employers must develop precautions and protocols consistent with CDC guidelines and industry standards.
“As it has been since the beginning of covid, we are still in a fluid phase,” said Alka Ramchandani-Raj, shareholder and co-chair of the workplace safety and health practice at Littler Mendelson PC’s Walnut Creek, California office.
And a lot depends on the geographic region, she added. The California Department of Industrial Relations, for example, has kept many COVID-19 protocols in place under its own Cal/OSHA program. Oregon’s OSHA program, meanwhile, scaled back the protocols.
Industries also differ on which protocols to follow.
The health care industry, which was told by the CDC to only require masks if the number of cases of covid-19 is high or if workers are caring for sick patients with covid-19 or other respiratory diseases, must still comply with OSHA’s respiratory protection standard, Mr. Young said. “They must implement a compliant respiratory protection program” when working with patients in certain settings, he said. “That includes fit testing, medical evaluations and choosing the right respirator.”
One thing is also certain: Expect little OSHA activity, experts say, adding that most inspections during the pandemic have been the result of employee complaints. With flu season approaching and the unknown future of Covid-19 cases looming, employers should remain vigilant, they say.
“When people believe there are hazards in the workplace, they are much more likely to call in complaints to OSHA,” Young said, adding that a large percentage of OSHA citations are the result of complaints from large unions and their employees.
“If we get into a season where there will be more respiratory illnesses, we expect additional OSHA complaints and OSHA inspection activity,” Young said.
Melissa Peters, a shareholder at Littler Mendelson, said employers “always have the threat of complaints … There was a real driving fear (for employees) in the thick of the pandemic.”
Still, “now I think there’s less fear among employees because we’ve been through this. A lot of people have gone back to work. Our kids have gone back to school,” she added.
Will OSHA complaints and visits lead to citations? Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP, is dubious.
OSHA’s ability to cite under the Consolidated General Duty Clause, which requires employers to provide a workplace free of hazards, for covid-19-related violations “has really been undermined recently” after President Joe Biden “publicly declared that the pandemic is over,” and signals that masking is no longer necessary,” wrote Mr. Brought in an email.
Reducing demands in health care settings was another sign, he added.