BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.

To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.

To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.

Login Register Subscribe

Employers left without guidance as COVID protocols wane

Employers left without guidance as COVID protocols wane

Employers are starting to question what to expect in the coming months as rigid COVID-19 guidelines for workplace safety are scaled back, 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 who are still waiting on a permanent COVID-19 standard for health care workers. The U.S. 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 COVID-19 guidelines since August 2021 and has no update on the process for creating the health care standard, an agency spokesperson wrote in an email. A temporary health care worker safety standard was in place for six months in 2021, as is permitted by law. 

Employers in other settings are also grappling with the loosening of requirements. 

“That’s a problem … there’s not a lot of guidance that has been provided to employers at all,” said Adam Young, Chicago-based partner at Seyfarth Shaw LLP. 

The approach in some ways is “figure it out on your own,” he said, adding that employers are having to develop precautions and protocols consistent with guidance from the CDC 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 in the workplace safety & health practice group in Littler Mendelson P.C.’s Walnut Creek, California, office. 

And much depends on the geographical 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 protocols. 

Industries also differ on what protocols to follow.

The health care industry, which was told by the CDC to require masking only if COVID-19 case counts are high or if workers are caring for sick patients with COVID-19 or other respiratory illnesses, still must follow OSHA’s respiratory protection standard, Mr. Young said. “They must implement a compliant respiratory protection program” when working with patients in some settings, he said. “That includes fit testing, medical evaluations and selecting the correct 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 flu season arriving, and the unknown future of COVID-19 case counts, employers should remain vigilant, they say.

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

“If we’re coming into a season where there will be more respiratory illnesses, we anticipate additional OSHA complaints and OSHA inspection activity,” Mr. 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) during the thick of the pandemic.”

Yet “now I think there’s less fear on the part of employees because we have 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 result in citations? Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP, is doubtful. 

OSHA’s ability to cite under the catch-all general duty clause, which requires employers to provide a workplace free of hazards, for COVID-19-related violations “has certainly been undercut recently” following President Joe Biden “publicly declaring that the pandemic is over, and signaling that masking is no longer necessary,” Mr. Brought wrote in an email. 

Scaling back requirements in health care settings was another sign, he added.