Employers left without guidance as COVID protocols eased

Employers are beginning to wonder what to expect in the coming months as strict COVID-19 workplace safety guidelines are rolled back, legal experts say.

In a surprise move on Sept. 23, the U.S. Centers for Disease Control and Prevention lifted its universal healthcare mask requirements, creating uncertainty for employers still awaiting a permanent COVID-19 standard for healthcare workers. The US Occupational Safety and Health Administration had announced that it would publish a standard by the end of the year.

OSHA has not updated any of its COVID-19 guidelines since August 2021 and has not updated the health standard creation process, an agency spokesman wrote in an email. In 2021, a temporary safety standard for healthcare workers was in place for six months, as permitted by law.

Employers in other environments are also struggling with the relaxation of the requirements.

“That’s a problem…there’s not a lot of guidance out there for employers at all,” said Adam Young, a partner at Seyfarth Shaw LLP in Chicago.

The approach is, in a way, “find out for yourself,” he said, adding that employers need to develop precautions and protocols that follow CDC guidance and industry standards.

“As we have been since the beginning of COVID, we are still in a fluid phase,” said Alka Ramchandani-Raj, shareholder and co-chair of the occupational safety and health practice group at Littler Mendelson PC’s office in Walnut Creek, California.

And a lot depends on geographic region, she added. For example, the California Department of Industrial Relations has maintained many COVID-19 protocols under its own Cal/OSHA program. Oregon’s OSHA program, meanwhile, reduced logs.

Industries also differ in what protocols to follow.

The healthcare industry, instructed by the CDC to only require a mask when the number of COVID-19 cases is high or when workers are caring for sick patients with COVID-19 or other respiratory illnesses, still needs to meet the respiratory protection standard of the Comply with OSHA said Mr. said Jung. “They need to implement a compliant respiratory protection program” when working with patients in some settings, he said. “This includes fit testing, medical exams and selecting the right respirator.”

One thing is also certain: Expect some OSHA activity, experts say, adding that most inspections during the pandemic have been the result of employee complaints. With the flu season approaching and the future of COVID-19 case numbers unknown, employers should remain vigilant, they say.

“When people believe there are workplace hazards, they are more likely to file complaints with OSHA,” Young said, adding that a large percentage of OSHA citations are the result of complaints from large unions and their employees.

“As we move into a season where there will be more respiratory illness, we anticipate additional OSHA complaints and OSHA inspection activity,” Mr. Young said.

Melissa Peters, a shareholder at Littler Mendelson, said employers “always threaten complaints… In the midst of the pandemic, there was a real fear of driving (for employees).”

But “now I think the fear of the employees is less because we went through that. Many people have gone back to work. Our kids have gone back to school,” she added.

Will OSHA complaints and visits result in subpoenas? Andrew Brought, a Kansas City, Missouri-based attorney at Spencer Fane LLP, is dubious.

OSHA’s ability to invoke the common duty fallback clause, which requires employers to provide a workplace free of hazards, for COVID-19-related violations “has certainly been undercut recently” after President Joe Biden “publicly had declared that the pandemic was over and signaled that masking was no longer necessary,” Mr Brought wrote in an email.

The reduction in healthcare requirements is another sign, he added.

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