COVID-19: Considerations for employers navigating the path forward

With the emergence of new COVID-19 variants, evolving science and continued pandemic-related guidance on the local, state and federal levels, employers are facing never-before-seen challenges in sustaining their business operations while keeping their workforces safe.

As everyday lives of employees continue to be upended, employers must make difficult decisions, including, among others, whether to implement mandatory vaccine and/or weekly testing requirements, particularly given vaccine hesitancy by some employees; how to best handle COVID-19-related leave and accommodation requests; and how to determine the most effective safety measures for the workforce.

These challenges are further compounded in an evolving pandemic world, which undoubtedly has affected all employees, whose views on work may have changed over the past almost two years and particularly given current worker shortages in certain industries.

Such challenges, along with practical guidance for employers, are addressed below.

Workplace issues

Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe working conditions for workers. OSH Act of 1970, Introduction. Under OSHA’s general duty clause, employers are legally obligated to maintain a safe workplace “free from recognized hazards” likely to cause death or serious harm. Id. at §5(a)(1). COVID-19 hazards are included under this clause.

To assist employers in maintaining safe workplaces, in January 2021, OSHA issued (and has since updated) advisory guidance on mitigating and preventing the spread of COVID-19 in the workplace. Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. In its August update, OSHA addressed ways for employers to protect unvaccinated and at-risk workers and issued new guidance for fully vaccinated employees in “substantial” or “high” transmission areas. Emphasizing the importance of vaccination in preventing severe illness or death from COVID-19, OSHA advises employers to mandate vaccination and/or require employees to undergo regular COVID-19 testing. Id., Purpose, Executive Summary.

Employers implementing such measures, however, must consider how to properly compensate employees for time off to get vaccinated or undergo COVID-19 testing. In New York, for example, the law requires that employees be given sufficient time off (up to four hours per injection), and such time off cannot be charged against other leave to which an employee is entitled. Labor Law, §196(c). Further, the U.S. Department of Labor (DOL) has issued guidance addressing pay for weekly testing, explaining that under the Fair Labor Standards Act (FLSA), an employer is required to pay an employee for all hours worked, including time spent outside normal work hours if the required “task” performed is “necessary” for the work an employee is “paid to do.”

Thus, undergoing COVID-19 testing may be compensable because it is necessary for employees to perform their jobs safely during the pandemic. U.S. DOL, W&H Div., COVID-19 and the FLSA, Q&As. 7 and 8. To manage costs, employers may want to consider onsite testing through outside providers. In its Key to NYC, New York City also has established mandatory vaccine requirements for staff and customers in connection with indoor dining, fitness and entertainment.

Importantly, the U.S. Equal Employment Opportunity Commission (EEOC) has sanctioned mandatory vaccination policies subject to the reasonable accommodation process and requirements under Title VII and the Americans with Disabilities Act (ADA)—i.e., an employee who chooses not to get vaccinated due to a disability or sincerely held religious belief may be entitled to an accommodation provided it does not create an “undue hardship” on the employer’s business. What You Should Know About COVID-19, the ADA, the Rehabilitation Act and Other EEO Laws, Introduction and Sections D and K.

In making “undue hardship” assessments concerning vaccination, factors for employer consideration include, among others, the percentage of already-vaccinated employees in the workforce, the requesting employee’s potential contact with unvaccinated non-employees, and current CDC recommendations. Employers are advised to consider all options before denying accommodation requests. Some possible accommodations are face coverings, social distancing, regular COVID-19 testing, and modified shifts or reassignment. Id., Section K.

An employer also must be prepared to engage in an accommodation process when such a request is sought by an employee whose medical condition places him or her at high risk for COVID-19 (even if vaccinated). If the employee’s job must be performed onsite, accommodations may include a temporary transfer, job restructuring of marginal responsibilities, and changes to the work environment (e.g., Plexiglas or other barriers) to effectuate social distancing from others. Id., Sections D and K.

Employers must also comply with state and local standards in terms of the accommodation process, which differ in certain respects from federal standards.

Safety measures

OSHA suggests employers engage in a multi-tiered approach to maintain workplace safety, which includes (aside from vaccination) measures such as physical distancing for unvaccinated and at-risk workers in communal work areas, face coverings, education on COVID-19 policies, safety protocols where workers have or are suspected to have COVID-19, compliance with mandated OSHA recording/reporting for COVID-19 infections and death, and anti-retaliation protection for individuals who express concern about COVID-19 hazards. OSHA guidance, The Roles of Employers and Workers in Responding to COVID-19.

For those exposed to COVID-19, recommendations differ based on vaccination status. If an unvaccinated worker has had close contact with someone who tested positive for COVID-19, the employee should be told not to come to work, tested immediately after identification, and, if negative, tested again five to seven days after the last exposure or immediately if symptoms develop during quarantine. If a fully vaccinated employee (without symptoms) is exposed to COVID-19, the employee should get tested three to five days after exposure and wear a mask in public indoor settings for 14 days or until receiving a negative test result. Employers should also comply with evolving guidance on the state and local levels concerning COVID-19 exposure in the workplace. Id.

Employers with New York worksites have the added burden of complying with the recently enacted HERO Act mandating that private employers (with limited exceptions) implement safety measures to protect employees during outbreaks of airborne infectious diseases, including adoption of workplace safety plans designed to prevent or limit exposure to airborne infectious agents when outbreaks occur.

In connection with the new law, the NY DOL has developed “minimum standards,” a model safety plan, and industry specific plans to prevent airborne infectious disease. An employer may adopt the applicable DOL plan or establish its own plan, provided the plan meets or exceeds the standard’s minimum requirements.

In September 2021, Gov. Kathy Hochul designated COVID-19 as an airborne infectious disease under the HERO Act, thus requiring employers to activate their workplace safety plans (until the designation period ends), conduct verbal reviews of their safety plans with employees, and comply with the law’s distribution, posting, and other requirements. See NY Hero Act, Airborne Infectious Disease Exposure Prevention Standard.

Effective Nov. 1, 2021, every employer with 10 or more employees must establish a joint labor management workforce safety committee in accordance with the law’s specified requirements. (Proposed) Labor Law, §27(d). The law also includes enforcement mechanisms and strict anti-retaliation provisions.

Finally, in September 2021, President Biden announced a national and comprehensive COVID-19 plan—a key component of which is increasing the number of vaccinated individuals in the United States. Under this plan, employers with 100 or more employees will soon be required to implement mandatory vaccination policies for their workforces or require unvaccinated employees (on at least a weekly basis) to produce negative COVID-19 tests, in compliance with an emergency rule to be issued by OSHA. The Biden plan also mandates vaccinations for federal workers and federal contractors, along with many other requirements.

Practical considerations

As the pandemic continues, employers face compliance and business challenges on all fronts. Accordingly, employers should carefully review their work-safety policies to ensure legal compliance with ever-evolving standards. Employers must carefully consider whether and how to implement mandatory vaccination and testing policies, including proof of vaccination requirements, and how to handle employees who outright refuse to get vaccinated or be tested.

Employers should update their reasonable accommodation policies to address COVID-19-related issues, consider the types of documentation required to support accommodation requests, determine factors for review in approving or denying such requests, and implement processes to ensure consistent decisions.

Employers must review existing COVID-19 safety measures at their workplaces on an ongoing basis, develop and implement infectious disease exposure plans that comply with the HERO Act, and consider how to address pushback on any safety mandates (e.g., refusal to wear a mask if required). Multistate employers must also assess whether uniform safety policies will work in all locations or need to account for differences in state and local laws (including OSHA-approved state safety plans) and workforce considerations.

Finally, employers must recognize that many, if not all, workers have been impacted by the pandemic and may be returning to the workforce with different expectations for work than those held pre-COVID-19. To that end, employers must assess shifting priorities in the workplace and consider retention strategies, such as increased flexibility for workers, the potential for remote work options, and possible management resistance to any such options.

Elizabeth Cowit is a director in the Gibbons P.C. employment and labor law group in New York.