Publication

June 22, 2021Client Alert

After the Mask Decision – What’s Next in the COVID-19 Response Plan

As noted in our June 10, 2021 alert, OSHA issued an Emergency Temporary Standard applicable to healthcare employers. On June 10, 2021, OSHA also released updated COVID-19 guidance for all employers not covered by its emergency temporary standard focused on healthcare employers and workers. To determine whether an employer is a healthcare employer covered by the OSHA Emergency Temporary Standard see our alert here. For all others, the updated non-mandatory guidelines will be applicable. This does not mean that only healthcare employers are required to take precautions regarding COVID-19. Instead non- healthcare employers are governed by OSHA’s General Duty Clause – Section 5A1 of the OSH Act – which requires employers to maintain a workplace free of “recognized hazards” (more on this later) that may cause death or serious injury to employees. In order to prove a General Duty Clause violation, OSHA must be able to also show a feasible means of abatement, and this new guidance will in many cases be the means of abatement that OSHA identifies in enforcement cases. 

OSHA’s updated guidance states that non-healthcare employers do not need to take steps to protect fully vaccinated workers who are not otherwise at risk from COVID-19 exposure, allowing employers to return to normal workplace conditions for those employees who are fully vaccinated. However, unvaccinated employees should still continue to follow the CDC’s recommended precautions (including wearing masks) according to the new OSHA guidance. The OSHA guidance also contains an Appendix addressing particular workplaces that pose a greater risk. In March, OSHA issued a National Emphasis Program (NEP) targeting certain industries for COVID-19 safety inspections found here. Primary targets are retail, healthcare, manufacturing and meat and poultry processors. Now that healthcare is subject to the Emergency Temporary Standard; it remains to be seen whether the NEP will be revised. But, for now, there are certain non-healthcare employers that are the focus of COVID-19 OSHA safety inspections along with healthcare. We refer to those workplaces as Targeted Workplaces below. 

Masks for Unvaccinated Workers

Considering the updated guidance and the different standards for compliance depending on an employee’s vaccination status, what actions are employers taking in terms of masking requirements, and what are the risks? [1]

  • Mandate employee vaccination. Employers can mandate that all employees must be fully vaccinated against COVID-19.
  • Mandate employee vaccination in order to return to the workplace. Some employers (usually office environments) are bringing employees back to the workplace from remote work, but only for those employees who are fully vaccinated. 
  • If employees are not vaccinated, they must wear a mask. Employers can require employees who are not fully vaccinated against COVID-19 to continue to wear masks.
  • Vaccine Card or Attestation Form. Employers can require employees to show proof of vaccination and/or sign a form attesting that they are fully vaccinated against COVID-19 before they are allowed to discontinue masking requirements.
  • The “Honor System.” Some employers have announced that if employees are fully vaccinated, they no longer have to follow masking requirements: relying only on the honor system, and not requiring proof of vaccination or employees to attest that they are fully vaccinated.
  • No masking required, regardless of vaccination status. Other employers are simply dropping all masking requirements and allowing business to go back to normal, regardless of their employees' vaccination status.

Many employers are applying the honor system or “don’t ask, don’t tell” route for a variety of reasons including: COVID-19 fatigue, the lack of clear guidance (or mixed guidance) from federal, state, and/or local authorities; the risk of losing employees who do not want to wear masks or receive the COVID-19 vaccine; and not wanting to treat employees differently based on vaccination status. There are also many reasons in support of mandating masks for the unvaccinated including: the risk of an OSHA citation and potential liability for infection; employee fear of getting sick; avoiding absences due to exposures or illness; and motivating employees to get vaccinated in order to increase herd immunity in the workforce in the event of a rise in cases. But the fact that some workplaces are not enforcing masks is putting pressure on other employers who feel that mask enforcement is the right decision for unvaccinated workers. This is especially true as the country is experiencing a labor shortage and employees may quit, rather than make a choice between a vaccine or a mask.

When a business owner asks a lawyer to evaluate choices, the lawyer compares legal risks.  Often, this is an acceptable level of analysis to reach a conclusion. However, the pandemic has been a particularly challenging time for legal analysts, because the rules and guidelines are constantly changing, and have questionable force under the law. The recent OSHA announcement left many employers (and lawyers) scratching their heads as to the best course of action. The law varies by state, and even by local community. This has led to many business owners deciding that the legal risks are too uncertain to use as a guide for decision making.

In most workplaces there is some risk of being issued a citation by OSHA for not enforcing mask wearing among unvaccinated workers. However, except for the targeted (see below) workplaces, the reality is that many businesses are choosing not to require masks, or not to enforce rules regarding masks. And this may be the right business decision, even if there is some level of risk. 

The potential liability for spread of infection is limited in most workplaces (other than targeted higher risk workplaces) at the present time. The reason that liability is limited is that masks are not being worn outside the workplace in most communities, and there is still a high incidence of people that are not vaccinated. Therefore, if an employee contracts the virus, it would be extremely difficult to prove workplace exposure, particularly if the employee is also going out in public. The risk is further limited by workers compensation laws and, in some states, by laws limiting liability for COVID-19 exposure.  

As long as the number of cases continues to decline, most of the workplaces that are not targeted by OSHA have a fairly low risk of citation in terms of their decision to “unmask.” However, even if a business decides to go mask free or apply the honor system, there are other measures in the OSHA and CDC guidance that should be continued or implemented to address COVID-19 safety precautions and responses, in order to mitigate risks. (See Precautions Beyond Masks below).   

Targeted Workplaces and the Mask

OSHA identified industries of concern in its June 10th guidance. In those industries, the legal analysis is different because OSHA has specifically targeted them for enforcement and identified them as higher risk for COVID-19 exposure or infection. Under OSHA’s general duty clause, OSHA will assert that the hazards in those workplaces were “recognized” through experience during the pandemic. Those targeted businesses may have a defense regarding “recognized” hazards while cases are declining. But that could all change if cases rise in the community, or if the specific employer did not take efforts to identify and prevent illness from spreading in the workplace. Moreover, even in states with liability limitations, those are not absolute. So higher risk workplaces, as identified by OSHA, have a different risk level than others.

The targeted industries should not compare themselves to other non-targeted workplaces when it comes to COVID-19 safety and mask requirements. This is sometimes difficult because employees will identify and compare their workplaces where their family and friends work, that are not enforcing mask wearing, and to public settings where people are not wearing masks. Employees have been challenging employers for being overly-restrictive, threatening legal challenges, or threatening to quit, which places additional pressure on employers. After all, if an employee can go to a bar or restaurant where there is little or no social distancing and no mask requirement, but must wear a mask at work for eight hours, the employee is going to view the employer as being unreasonable. But, just like an employee who chooses to climb on his own roof without fall protection, the employee has a choice to enter the bar or restaurant where people are not wearing masks, and the government is limited in its ability to regulate that personal choice. Once the employee enters the workplace, OSHA’s standards and general duty clause (Section 5A1 of the OSH Act) require the employer to protect the worker.

Higher Risk Workplaces were identified by OSHA as having these characteristics:

  • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
  • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
  • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

The most common characteristic listed above is the second one: frequent contact with other unvaccinated individuals. In its June 10, 2021 guidance, OSHA identified industries where this commonly occurs as follows:

  • Manufacturing
  • Meat and poultry processing
  • High-volume retail and grocery
  • Seafood processing

In its March 2021 National Emphasis Program (NEP) (previously referenced), the list of targeted workplaces was more expansive than these four, and included other manufacturing sectors. 

While manufacturing is a large category, food and agricultural manufacturing have been the primary target because of the outbreaks in those industries in 2020, the seasonal work and high number of workers at certain points in the year (for agriculture), as well as the number of foreign-born and minority workers and the communal nature of the workforces in smaller communities.   

In industries where employees have customer contact (high volume retail and grocery), or work in close proximity on conveyor lines, or in packaging or processing areas, and seasonal work involving immigrant populations that congregate outside of work in addition to working in close proximity at work (meat and poultry, seafood and other agricultural processing indoors), the OSHA guidance will be used as an enforcement tool. All retailers and manufacturers, especially agriculture and food manufacturers, should evaluate the new OSHA guidance very closely, when making decisions about mask wearing for unvaccinated workers, as well as the other aspects of the June 10, 2021 OSHA guidance. Michael Best has developed an audit program for these targeted businesses. More information is here.    

Precautions Beyond Masks

Regardless of whether an employer chooses to police mask-wearing in the workplace, there are other guidelines that OSHA and the CDC have announced in addition to masks for the unvaccinated. Employers should consider the following actions, especially when not enforcing masks for unvaccinated workers. 

  • Grant paid time off for employees to get vaccinated.
  • Continue screening and symptom monitoring and instruct employees who are infected, unvaccinated employees who have had close contact with someone who tested positive for COVID-19, and all employees who have COVID-19 symptoms to stay home from work.
  • Maintain social distancing for unvaccinated and other at-risk employees in communal workplace areas.
  • Educate and train employees on COVID-19 and the employer’s policies.
  • Maintain ventilation systems.
  • Continue to perform routine cleaning and disinfection.
  • Implement protections from retaliation and set up an anonymous process for workers to voice COVID-19 concerns.
  • Monitor the situation in your local area and communicate a plan that identifies when the employer might shift back to mask enforcement, such as if the number of cases rise or if COVID-19 variants increase and show resistance to vaccines.
  • Avoid declaring the COVID-19 pandemic “over” in your workplace in case later guidance changes.

Conclusion

If an employer is not going to police mask-wearing in the workplace, the employer should avoid eliminating all COVID-19 safety measures for now, as there are other actions, besides mask enforcement, employers should take to address COVID-19 safety in the workplace. 

Targeted industries/workplaces in retail and manufacturing, (especially agriculture and food processing), should strongly consider adopting all of OSHA’s new guidance, including mask wearing for unvaccinated workers. 

Healthcare employers must follow the OSHA Emergency Temporary Standard found here. If you have questions about whether you are a healthcare employer, review our ETS alert.

For questions, please contact your Michal Best Attorney or Michael Best’s Workplace Safety Health team. For other resources regarding COVID-19 safety consult our Resource Page.

[1] Some of these options will also depend on state and local laws or regulations.

 
 
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