Special thanks to guest contributor, Melissa Allchin.
COVID-19 has been a mainstay for over two years now. Notwithstanding the pandemic’s devastating impacts, employers (and employees) have tired of thinking about COVID-19, and are ready to allocate their energy and resources to other pressing matters, such as the economic crisis or transformative geopolitical events.
Though it is clear that the pandemic is not yet receding, it does seem that we could finally be reaching equilibrium in the form of a new normal, as the world has largely emerged from COVID-19 restrictions and gotten back to work with some semblance of normalcy. Where does this leave employers who want to continue to protect the health and safety of their workforces while also turning their attention to other issues? Below (and in our video chat COVID-19: It’s Not Over Until It’s Over, Employers), we discuss the COVID-19 trends we’re seeing now, as well as practical tips for employers as they continue to navigate pandemic issues in the workplace.
Contact tracing–should employers still do it?
Employers are still seeing COVID-19 cases in the workplace, and if anything, cases have increased considerably in many locations. Many employers are asking whether they still need to contact trace or track COVID-19 cases in their workforce. While some employers have stopped contact tracing, there are important considerations to think through before employers decide to do so.
What’s required and what’s recommended?
Employers should look at what’s required and what’s recommended in jurisdictions where they have employees and, based on requirements and recommendations, devise a best practice for their workforce. Many jurisdictions have done away with contact tracing requirements for employers, but contact tracing is still recommended or encouraged in other jurisdictions–and it’s still required in some.
At the federal level, though the Occupational Safety and Health Administration (OSHA) does not specifically require employers to conduct contact tracing, OSHA’s General Duty clause (Section 5(a)(1)) still obligates employers to provide workers with a safe and healthful workplace, which in turn requires employers to comply with state, local and federal recommendations and laws regarding workplace safety. OSHA has advised that employers must take appropriate steps to protect workers from exposure to COVID-19 in the workplace. These steps might include notifying workers to monitor themselves for signs or symptoms of COVID-19 if they have been exposed–which, of course, is a form of contact tracing.
California is an example of a jurisdiction that still requires contact tracing. The Cal/OSHA Emergency Temporary Standard (ETS) requires employers, after learning of one positive COVID-19 case at the worksite, to
(i) determine the day and time the COVID-19 case was last present in the workplace and, if possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had COVID-19 symptoms;
(ii) determine who may have had a close contact with the positive case; and
(iii) within one business day, notify employees and independent contractors who were in the same “worksite” as the positive COVID-19 case of their potential exposure without disclosing the infected individual’s identity.
There are additional Cal/OSHA requirements when there is an “outbreak” of three or more positive cases in the workplace within a 14-day period, including excluding COVID-19 cases and employees who had close contact until they test negative or the return to work requirements for COVID-19 cases are met. Of course, determining which employees must be excluded under these rules requires contact tracing.
Other states, such as Illinois, encourage employers to notify fellow employees of an infected individual of their possible exposure to COVID-19 in the workplace, while maintaining confidentiality as required by the ADA. And Wisconsin urges employers to notify the local health department after learning that a worker has tested positive for COVID-19 so that the health department has the option to initiate contact tracing procedures.
Employers should keep monitoring, because changes are still being made
Employers should continue to keep an eye out for changes because some jurisdictions are continuing to modify recommendations and requirements as case numbers change or new subvariants become dominant. For instance, California recently made changes to its definition of “close contact.” California used to define “close contact” as what’s become a familiar standard–being within six feet of a positive case for a cumulative total of 15 minutes or more over a 24-hour period. Early this month, the California Department of Public Health (CDPH) changed that definition to focus on “shared indoor airspace.” Now, “close contact” in California means someone sharing the same indoor airspace (such as a home, clinic waiting room, airplane, etc.) for a cumulative total of 15 minutes or more over a 24-hour period (which could include, for example, three individual five-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period. Though there is not much guidance on how large a shared indoor airspace can be, a “home” is one of the examples provided by CDPH, as is “work colleagues within the same office space.” Following a rule of reason, if employees are in the same room for a cumulative 15 minutes over the course of 24-hour period, they’ll most likely be considered a “close contact” in California, which will require notice–and contact tracing.
What if employers decide not to contact trace? Are there risks?
Employers who decide not to contact trace face potential liability.
For one thing, employers in states with liability shield laws may lose the protection of those laws if their health and safety practices do not line up with current COVID-19 guidance and/or requirements, because some states have conditioned their liability shield law protections on employers following both recommended and required safety measures for COVID-19.
For another, employers increasingly being sued by third parties in so-called “take-home cases”–and we expect to see even more of these. In the typical take-home case, a third party plaintiff alleges that an employee who contracted COVID-19 at work brought the virus home to their spouse or another individual who suffers severe illness or death. The spouse or third-party then sues the employer for damages. While the fundamental question of whether an employer can be liable for a third party’s injuries is not yet fully resolved, courts are beginning to address the issue. For example, the US Court of Appeals for the Ninth Circuit recently certified questions to the California Supreme Court, seeking guidance on whether there could be third party liability (under a negligence standard) for take-home COVID cases and whether the workers’ compensation regimes will preempt that liability. While we await the answer to these questions, employers should consider the increased risk of liability in these types of cases if they choose not to contact trace. And employers should note that even if the workers’ compensation “exclusive remedy” defense is found to apply to third party claims, plaintiffs may still argue that the defense is not available to the employer and should be set aside if an employer knows an employee has been exposed to a harmful agent, but fails to notify the employee.
Key takeaway: Employers should revisit their policies and procedures around contact tracing, and make sure they are up-to-speed on any requirements or recommendations in locations where they have employees before determining whether to relax their contact tracing policies–and keep in mind that an inappropriate relaxation in contract tracing could lead to liability.
Mandatory vaccination policies–do employers still need them?
Earlier in the pandemic, many US employers adopted mandatory COVID-19 vaccination policies (in jurisdictions where they are not prohibited) as a way of keeping the workplace safe. But then the OSHA COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS)–which caused some employers to put mandatory vaccination policies in place in anticipation of its implementation–was enjoined by the US Supreme Court on January 13, 2022 and was subsequently withdrawn by the Biden administration. At the same time, most state and local vaccination requirements have been rolled back. One exception: New York City still technically requires employees who work in the city limits to be fully vaccinated. The requirement continues to be extended by 5-day increments (with the last Executive Order extending the requirement issued on July 10), and so it remains in effect, notwithstanding public comments by the Mayor of NYC that his administration is not enforcing the mandate.
Employers who currently have mandatory vaccination policies in place should revisit them to determine whether they are still permissible under state and local law and whether they are still prudent for their workforces. Key considerations include:
- Patchwork policies. Employers with employees in multiple states have had to implement patchwork policies for vaccinations, since some states’ laws prohibit employers from requiring vaccinations or discriminating based on vaccination status (although most don’t). Keeping track of the laws and pending legislation in several jurisdictions, and constantly modifying policies and procedures accordingly, can be difficult.
- Who is “vaccinated”? While a fully vaccinated workforce is still the best way to ensure that the workforce is as protected as possible, as the time increases between employees’ final doses or booster shots, immunity may wane, and as of now, there’s not an easy metric for employers to use to determine just how protected workers are at any given time. Employers who continue to implement mandatory vaccination policies should determine how they will require employees to keep vaccinations up-to-date, and what steps to take if today’s vaccinated employees don’t have effective immunity levels to combat surges down the road. There is some guidance on this point. For instance, the San Francisco County Health Officer recently clarified that the City’s definition of “up-to-date on vaccination” does not include any boosters beyond the first booster shot, but also mentioned that “future conditions may require a change.”
- Religious accommodations. Employers have seen their fair share of accommodation requests from employees asserting religious beliefs in order to obtain an exemption from vaccination requirements. Determining whether an employee is entitled to a religious-based accommodation can be tricky. The Equal Employment Opportunity Commission (EEOC) explains that employers should generally assume an employee’s request for a religious accommodation is based on sincerely-held beliefs–even if the religious belief is unfamiliar to the employer or a nontraditional religious belief. The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s “own scheme of things, religious.” Employers can reject religious accommodations if they determine the employee’s objection is based on “social, political, or personal preferences, or nonreligious concerns about the possible effects of the vaccine.” This will almost always require employers to make a difficult call and face the risk of litigation by disgruntled employees if accommodations are denied.
- Employee lawsuits. Employers should balance the benefits of a mandatory vaccination policy against the detriment of possible employee lawsuits from employees who don’t want to be vaccinated. Especially now–with no OSHA ETS to provide protection and the lifting of indoor mask mandates and vaccination mandates across the country and elsewhere–employers will have to determine whether maintaining a mandatory vaccination policy (as opposed to, for instance, a policy that allows employees to choose between vaccination or regular testing) is worth it.
Key takeaways: Employers should revisit mandatory testing or vaccination policies in those locations where they are still requiring them, and determine whether they should make changes based on the considerations outlined above and other factors such as current COVID-19 levels in the communities where they have employees.
Accommodation requests—what can employers expect?
Employers returning employees to the office should be prepared to handle not only requests for accommodation from vaccination requirements, but also for “long COVID”– a term used by the CDC to describe various post-COVID-19 conditions where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with the virus.
According to the EEOC’s COVID-19 Q&A technical guidance, “long COVID” can be an actual disability if it substantially impairs a major life activity. The EEOC has provided examples of individuals who suffer from ongoing health problems and are “substantially limited in major life activities” weeks after they are infected with COVID-19, including:
- An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating which the employee’s doctor attributes to the virus
- An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months
- An individual who has been diagnosed with COVID-19 and experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months
- An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that lingers for many months, even if intermittently
Key takeaways: Employers should prepare for long-COVID accommodation requests by reviewing the EEOC guidance and CDC guidance on long COVID, reviewing their reasonable accommodation policies and procedures, and ensuring that managers, supervisors and HR are trained on long COVID and consider it a disability when processing reasonable accommodation requests.
Finally, international travelers flying to the US are no longer required to present proof of a negative coronavirus test taken within a day of their departure flight to the US. Just after midnight on June 12, 2022, the Biden administration lifted its requirement that all travelers test negative for coronavirus before flying to the US. The change will be reassessed by Centers for Disease Control and Prevention (CDC) in 90 days, according to a senior administration official. The CDC may decide to reinstate the requirement if a new variant of the virus emerges that is of concern.
Testing prior to air travel is still recommended. Moreover, foreign nationals still are required to be fully vaccinated against coronavirus to enter the country (whether traveling by air or by land), with limited exceptions.
The CDC has kept and expanded its travel advice based on the community spread of COVID-19 in the US, with protective cautionary measures relative to the level of community spread. For individuals traveling to areas with a high level of community spread, the CDC recommends wearing a mask in indoor public places, that individuals who are not up to date with their COVID-19 vaccines avoid travel to high level areas, and that unvaccinated individuals quarantine for five days upon returning home and test three to five days after returning home.
The CDC also still recommends all travelers:
- Ensure they are up-to-date with COVID-19 vaccines (including boosters) before any planned travel
- Self-monitor for COVID-19 symptoms, and isolate and get tested if they develop symptoms
- Consider packing at-home COVID tests in case they develop symptoms while traveling
- Bring a mask, because they may be required by individual airports, airlines, public transit agencies, and some businesses
Travel requirements for jurisdictions outside of the US continue to vary greatly. The United Kingdom has completely lifted its vaccination requirements for travelers, and other countries in Europe have as well. Many countries have a stoplight system–signaling that you don’t have to be vaccinated if traveling from a “green” country, but that if you’re traveling from red list countries you may have to be vaccinated or meet additional requirements. And countries with limitations on travel may have exceptions. For instance, the Netherlands won’t allow travelers to stay in the Netherlands if they’re not vaccinated, but if they’re simply transiting through the Netherlands to another location, they may be able to wait in the airport for a bit before moving on.
Know before you go (and make sure employees know before they go), because requirements for travel vary by jurisdiction, but at the moment fully vaccinated international travelers are not required to provide a negative test before boarding a plane to travel to the US.
Forms—what should employers keep?
We don’t know whether another variant or surge will come along requiring employers to once again reinstate COVID-19 policies and procedures they may have started putting to the side. Though we all hope to never need them again, employers should not toss out all of the systems they have implemented to deal with the pandemic just because of COVID-19 exhaustion.
We think employers should hold onto these types of forms:
- Documents for reasonable accommodation requests under the ADA and Title VII (and analogous state / local law), for both COVID-19 related and non-COVID-19 related requests–including request forms, request determination notifications, a guide to assist managers, supervisors and HR through the interactive and determination process, and response letter templates (both for granting accommodations and denying them). As we said before, we expect to see requests for accommodation continue, and having these forms handy will be helpful, especially with the expected uptick in accommodation requests as employers return employees to the office.
- A plan for reopening / reopening checklist. We’ve learned from experience that depending on community levels or outbreaks in the workplace, employers may need to close the office for a week or two and then quickly pivot and reopen. A plan to reopen and an easy-to-follow checklist will help employers remain agile should we see more waves or surges.
- Employee and visitor symptom / health check self-certification forms, requiring respondents to self-certify a lack of COVID-19 symptoms, close contact or diagnosis. In the case of increased COVID-19 case levels, these may again come into play.
- Protocol for when an employee or visitor tests positive for COVID-19. Especially if employers operate for a while without a positive case in the workplace, this is a great reference should one occur. Make sure to update this with applicable CDC, state and local requirements and guidance.
Key takeaway: Employers should review and update their COVID-19 forms, policies and procedures, taking stock of what they have–and what they may need–to be able to change course at a moment’s notice.
So, in summary, employers should think through:
- Contact tracing-employers should continue to trace in accordance with applicable requirements or guidance, and fully understand the risks if they don’t
- Testing and vaccination policies-employers should revisit these and determine what works best now, while following state and local requirements
- Accommodation requests-employers will continue to deal with these, so make sure managers, supervisors and HR are up-to-speed
- Travel-know before you go, because travel rules still vary greatly by jurisdiction
- Forms-keep the ones we’ve outlined for a quick pivot if necessary
For assistance with these items and all of your employment needs, contact your Baker McKenzie employment attorney.