(NEW YORK) — As more states lift mask rules and other restrictions put in place during the pandemic and businesses start to invite employees back to work in person, the federal government also is working on how to make sure employers are protecting workers from COVID-19.
The federal agency charged with protecting workers, the Occupational Safety and Health Administration, has fielded thousands of COVID-19 related complaints since the start of the pandemic and is expected to release an emergency rule to help enforce the steps employers are required to take to keep people safe.
OSHA issued almost $4 million in citations for COVID-related complaints, as of the latest update in January and not including citations from state worker safety agencies. Those violations included failing to implement a written program to protect workers, failing to provide appropriate PPE, and generally failing to ensure a safe working environment.
The details of the emergency rule aren’t public yet, but employment law experts say they expect it to put more power behind the guidance issued by OSHA and other agencies that require businesses to take steps to keep people safe from infection in the workplace, including wearing PPE like masks, social distancing, ventilation, and in some cases limiting the number of people in a space if distancing isn’t possible.
Employers are charged with deciding how each specific workplace will handle the risk of exposure to COVID-19 in line with local, state, and federal health guidance. But through OSHA and other agencies the federal government has laid the groundwork for what employers need to do and what employees should expect.
Employers can require workers to be vaccinated
When it comes to vaccinations employers can legally require employees to get the COVID-19 vaccine, regardless of whether it’s fully approved or emergency authorization, but they must provide justification for why it’s necessary to do the job safely. For example, if you’ve been doing your job 100% remotely an employer can encourage you to get vaccinated but it’s harder to justify requiring it than if you are in a job where you frequently interact with the public or are required to work in close quarters with other employees.
Employers can ask workers if they’re vaccinated but they cannot share that information or ask follow up questions that could indicate if an employee’s disability, according to Cathy Ruckelshaus, legal director at the National Employment Law Project.
Ruckelshaus said a vaccine requirement would work similar to any other medical mandate in the workplace, meaning employers still have to allow employees to ask for an exemption.
“I think that the EEOC guidance is pretty clear that employers are permitted to mandate vaccines if they want to, but they have to have the basic protections in place that they would for any kind of medical mandate so your employers would have to comply with any request for accommodation by an employee, or basically a waiver by an employee based on disability or religious grounds,” she said.
If employees have medical or religious reasons they can’t get the vaccine and need additional accommodation to ensure they’re protected from COVID-19, the same process should apply as other medical exemptions. The employer should work with that individual to determine a reasonable accommodation so they can still do the job. If an employer and employee can’t reach an agreement on how that employee can come back to work in person, they can legally be fired for inability to meet requirements of the job.
“There’s nothing new here, it’s the same dynamic in terms of what employers are used to doing, and what employees need to show if they are requesting an accommodation,” Ruckelshaus said.
The Biden administration has also expanded unemployment insurance so it’s easier for people to access financial help if they are required to go back to work but can’t do so because of concerns about contracting COVID or are fired for refusing to go back to work in person or inability to get the vaccine.
Even if employers ask workers if they’re vaccinated they legally can’t share an employee’s medical information with their co-workers, so people going back to the office won’t know if their co-workers are vaccinated unless they voluntarily share that information.
Even if CDC says masks can go away businesses can still require them
Last week CDC said fully vaccinated Americans, meaning at least two weeks after the final dose of the COVID-19 vaccine, don’t need to wear a mask or social distance in most situations. But it is ultimately up to businesses and local health authorities to decide how to implement that guidance.
OSHA is reviewing the new CDC guidance to provide more information on how to implement it in the workplace, according to a message on the agency’s website.
CDC has also recommended that most schools keep policies that require masks – at least for now — in place to protect children under 12 years old who aren’t yet eligible for any of the COVID-19 vaccines. The CDC says it is reviewing its mask guidance for schools next year.
Employees working in person or considering returning to work in person should consult state and local requirements around masks and ask their employer about the expectations for wearing masks in their workplace. At least 16 states had adopted or announced plans to adopt the CDC’s updated guidance on masks as of Friday, while three dropped mask mandates entirely. Some fully vaccinated individuals could also choose to keep wearing a mask if they don’t know if everyone they encounter at work is fully vaccinated.
The CDC recommends people who are not vaccinated continue to take steps to prevent exposure to COVID-19 as they return to work, including wearing masks, maintaining 6 feet of distance from people outside your household, avoiding poorly ventilated or crowded spaces, washing hands and using hand sanitizer, and getting a COVID-19 vaccine.
Employers can ask if you have symptoms of COVID-19, but not if your spouse has it
Employers can ask employees questions to make sure people with COVID-19 don’t enter the workplace, including asking if an employee has experienced symptoms, tested positive for the virus, ask employees to take COVID-19 tests consistent with CDC guidelines, ask employees where they have traveled, require employees to stay home if they are experiencing symptoms, and require a doctor’s note for certifying an employee is fit to return to work if they recently had COVID-19, according to EEOC guidelines.
But an employer cannot ask if an employee’s family members have experienced symptoms or tested positive for COVID-19, beyond asking if they have come in close contact with someone with COVID. Employers also need a reason to ask only one employee to take their temperature or a COVID-19 test if it’s isn’t a requirement for everyone, for instance if they are visibly exhibiting symptoms at work.
The EEOC says employers can legally bar an employee from physically coming in to work if they refuse to have their temperature taken or answer questions about whether they have COVID-19, but recommends employers ask why an employee is refusing and work to accommodate their concerns and make sure they know their medical information will not be shared.
Every workplace needs a COVID-19 plan
Employees are legally entitled to a workplace free of safety or health hazards, according to an OSHA rule called the general duty clause, and the agency has been using that standard to cite employers who inspectors found weren’t doing enough to employees from COVID-19.
OSHA has published extensive guidance for employers on how to create programs to prevent COVID-19 infections in the workplace, including with some industry-specific guidance for situations like airlines, food processing, and even hair salons.
The general guidance recommends providing workers with masks, implementing 6 feet of distance between workers or installing barriers when that distance isn’t possible, and following CDC guidance on requiring workers who could have COVID-19 to isolate or quarantine.
Debbie Berkowitz, worker safety and health employment director for the National Employment Law Project, said the upcoming OSHA will likely make that guidance a requirement and give employers a deadline to put together a COVID-19 plan evaluating the risks and steps to mitigate exposure in their specific workplace.
“You can’t just call everybody back and then when people get sick go, ‘oh I gotta figure this out,"” she told ABC News.
David Michaels, former OSHA director and professor at the George Washington University School of Public Health, said requiring these plans could make a big difference because it gives employees documentation of what to expect and makes it easier to file complaints and enforce violations if employers don’t have a plan or don’t follow it.
“I think the message that everybody should have is that, you know there are, there is guidance out there now when even until the standards coming out employers should try to meet those especially, you know as offices and workplaces are reopening this standards will certainly motivate some employers to do a better job at that but they shouldn’t, we shouldn’t need a standard to do that,” he said.
The new OSHA rule isn’t expected to overhaul workplace requirements
The upcoming OSHA emergency standard isn’t expected to change the protections employees already have at work or set specific requirements on how businesses should protect their employees from COVID-19 beyond the current guidance. Berkowitz and Michaels said they don’t expect it to give specific requirements on how and when people should wear masks, for example, or how many people are allowed to be in a workplace because one national policy would be difficult to apply to every workplace.
“This standard does several things at once. First by making these requirements many employers who want to be law abiding will make an effort to follow them,” Michaels said.
“Then secondly, it makes inspections much more straightforward. Because right now, without a standard, it’s more difficult for OSHA inspectors to issue citations because they just, they have to use like all the general duty clause that just says that the employer is not providing a safe workplace where if there’s a standard that includes things like masking or distance then, you know, when an inspector comes in and sees that the employer is not meeting those requirements it’s much more straightforward to issue a citation.”
Michaels said the third aspect of the standard is that it sends a strong message about the importance of protecting employees from COVID-19 and the consequences for businesses that don’t.
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