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Employers frustrated by conflicting COVID-19 regulations

Posted On: May. 12, 2021 7:00 AM CST

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With some states rolling back restrictions and others extending mask-wearing and other safety protocols, the patchwork of COVID-19 regulations affecting workplaces is causing challenges for companies with multistate operations, legal experts say.

For example, the Oregon Occupational Safety and Health Division extended its safety rules for workplaces, but California recently rolled back its quarantine requirements for vaccinated workers exposed to the virus.

Florida's surgeon general on April 29 issued a notice that vaccinated people do not need to wear masks indoors. Some states such as Mississippi and Texas have scrapped mask mandates altogether.

Yet Occupational Safety and Health Administration guidelines that lean on U.S. Centers for Disease Control and Prevention guidance still call for indoor mask-wearing, and OSHA is getting ready to release a national emergency temporary standard that experts say could echo the guidelines already in place and come with fines for noncomplying employers.

Another issue is employees who don’t understand why the rules remain when they have been vaccinated, said Erik Eisenmann, Milwaukee-based partner and chair of the labor and employment group at Husch Blackwell LLP, who noted that questions around worker safety protocols and vaccinations are among the most common.

“Those employees protesting (masks) are only going to get louder,” he said. 

Todd B. Logsdon, Louisville, Kentucky-based partner and co-chair of the workplace safety practice group at Fisher & Phillips LLP, said the issue has led to frustration, especially for employers that operate in multiple states.

“Some states have completely lifted all restrictions and other states still have a fair amount of their restrictions in place,” he said, adding that the conflicting messages are leading to morale issues among employees.

“I just received a call from a national client in which the local municipality is no longer requiring masking in municipal buildings and leaving it up to private employers what they will do within municipal limits, and a bunch of the current employees are frustrated at the company because they are continuing to require employees to wear masks,” said Andrew Brought, an attorney in the OSHA practice at Spencer Fane LLP in Kansas City, Missouri.

“But, unfortunately, until the CDC or OSHA provide guidance otherwise, in situations where employees are indoors without ability for social distancing and inability to confirm vaccination, OSHA’s expectation would be that those employees are wearing (personal protective equipment) in those circumstances,” he said.

Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said employers have reported that “the single greatest compliance challenge they have faced during this pandemic has been trying to comply with the impossible patchwork of competing and contradicting mandates from local and state health departments, governors’ executive orders, state (occupational safety and health) plan emergency temporary standards, and so on.”

“As a result, (employers) cannot execute uniform training, they cannot use uniform records, and they experience great confusion for employees who work across multiple locations,” he said.  

Mr. Eisenmann said he advises employers to choose the conservative approach: Maintain the national guidelines in place. “There is no legal risk to the employer to be more cautious,” he said. “If you want to truly avoid any scenario that exposes you to an OSHA violation or other risk, follow the CDC.”

Employers should also pay attention to state liability shields that say businesses can’t be sued by workers or patrons for potential COVID-19 exposures, according to experts. More than a dozen states have such laws in place or are considering such legislation.

“Most of those include language that the business took reasonable steps to provide a safe place and a lot of those (liability protections) talk about following local, state and federal recommendations and guidelines,” Mr. Logsdon said. “That is one thing that would give incentive for employers to follow guidelines, to take advantage of that liability shield.”

More insurance and workers compensation news on the coronavirus crisis here