Frankfurt Kurnit Klein & Selz

June 16th, 2021

The Fast and the Furious: Four Major Developments in COVID-19 and Return-to-Work Protocols

In case you blinked, here is a rundown of four major developments that came out in the past week that every employer needs to know as they reopen their offices:

1. US/OSHA Safety Standards Update. On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (US/OSHA) updated its general industry guidance and announced an emergency temporary standard to protect healthcare workers, both of which are aligned with recent recommendations from the Centers for Disease Control and Prevention (CDC). The updated general guidance, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” recommends that employers encourage COVID-19 vaccinations, provide paid time off for employees to get vaccines, and focus workplace protections on unvaccinated and otherwise at-risk workers. In particular, US/OSHA recommends that employers engage with workers and their representatives to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers, including paid time off for vaccinations, free face coverings or surgical masks, and physical distancing in all communal work areas.  

As for employers in the healthcare industry, US/OSHA issued the temporary standard set forth under 29 CFR 1910.502 to protect healthcare workers. The standard applies to settings where employees provide healthcare services, such as hospitals, nursing homes, and assisted living facilities. It requires non-exempt facilities to conduct a hazard assessment and have a written plan to mitigate virus spread, and requires certain employers to provide employees with N95 respirators or other personal protective equipment. But the temporary standard exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with COVID-19 will be present.

Takeaway for employers: US/OSHA continues to update its general guidance to employers and to emphasize the need to focus protections on unvaccinated and otherwise at-risk workers. Indeed, the recent guidance makes clear that, unless otherwise required by federal or state law, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure in any workplace where all employees are fully vaccinated. That said, employers that provide healthcare services or healthcare support services must pay particular attention to US/OSHA’s temporary standard to protect healthcare workers.      

2. Cal/OSHA Safety Standards Update. Despite the excitement in California about the state’s June 15th reopening and the guidance from US/OSHA, the CDC, and California’s Health and Human Services Agency that vaccinated people can shed their masks in most situations, the California Division of Occupational Safety and Health (Cal/OSHA) refused to relax mask requirements during a special meeting on June 3rd. Instead, Cal/OSHA doubled-down on mask requirements, adopting a revision to its COVID-19 Emergency Temporary Standards that would require indoor workers to continue wearing masks into early next year regardless of vaccination status.  

Facing pressure from politicians and business owners seeking clear, easy-to-follow protocols as people return to worksites, Cal/OSHA withdrew its June 3rd revision on June 9th. Cal/OSHA is expected to adopt new rule revisions regarding face coverings for employees that are more aligned with other state and federal agencies during its upcoming June 17th meeting. Governor Newsom said that any changes made during this meeting will take effect immediately bypassing the normal ten day review period.  

Takeaway for employers: It is likely that Cal/OSHA will relent on its staunch mask-wearing stance not only because the CDC and other public health agencies are all going the opposite way, but also because keeping track of and abiding by inconsistent rules is causing unnecessary stress to employers and employees alike who are feeling anxious about the return to work. Nevertheless, until any new revisions to Cal/OSHA’s COVID-19 Emergency Temporary Standards take effect, people working in California offices will have to continue wearing their masks when at work. 

3. Texas Federal Court Upholds Employer’s Mandatory Vaccination Policy. On Saturday, June 12th, a Houston federal judge handed the first major victory to employers with mandatory vaccination policies. One hundred seventeen staff members of Houston Methodist hospital filed a lawsuit challenging their employer’s mandatory COVID-19 vaccination policy on several bases, including that they were being “coerced” into getting the vaccine in a right-to-work state and that their employer was making them into “human guinea pigs” for an experimental vaccine. Primarily relying on a 100 year old U.S. Supreme Court precedent that mandatory vaccinations do not violate due process, Judge Lynn N. Hughes dismissed the lawsuit in its entirety. He rejected the plaintiffs’ argument that the mandatory vaccination policy violated federal law because it had not been “fully approved” by the Food and Drug Administration, stating that the FDA “neither expands nor restricts the responsibilities of private employers; in fact it does not apply at all to private employers….” Judge Hughes concluded his “straight to the point” five page order by stating that “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

Takeaway for employers: Although this is the first lawsuit regarding employer-mandated COVID-19 vaccination policies to reach judicial review, Judge Hughes’ reasoning in his dismissal is not surprising. The decision is consistent with U.S. Supreme Court precedent regarding employer-mandated vaccination policies and the EEOC’s May 28, 2021 pronouncement upholding mandatory vaccination policies subject to reasonable accommodations for employees with ADA-recognized disabilities or sincerely held religious beliefs. Other courts are likely to follow the same precedents and reject challenges to employer-mandated COVID-19 vaccination policies. The Plaintiffs have said that they will appeal this ruling all the way to the U.S. Supreme Court if necessary. 

4. New York Lifts Most Remaining Pandemic Restrictions. On June 15th, New York reached a 70% rate in COVID-19 vaccinations across the state. The 70% milestone had been set by Governor Andrew Cuomo as a threshold for lifting certain remaining restrictions in New York, including indoor capacity limits, social distancing, and mask wearing in offices, restaurants, theaters, and fitness centers. It will now be optional for most businesses to retain those restrictions for vaccinated employees, although masks will remain mandatory on public transportation and in hospitals, schools, and larger venues.  

Take-away for employers: Most New York employers, so long as they do not congregate patrons and/or operate below the State social gathering limit of 250 indoors/500 outdoors, are no longer obliged to require social distancing and masks in the workplace for their vaccinated workers. Employers should continue to engage in health screenings, require masks/social distancing for employees who are unvaccinated or whose vaccination status is unknown, and continue to encourage hand hygiene, cleaning/disinfection of high-touch surfaces and maintain proper ventilation/air filtration. Businesses must maintain minimum State standards as well as applicable federal requirements including those of the ADA, CDC, EPA and US/OSHA. 

Questions? If you have questions about these developments, or about other employment law issues, please contact Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com, Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, Jesse Klinger at (212) 826-5574 or jklinger@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.