Over the past 16 or so months, labor and employment lawyers across the country have fielded the same litany of questions from concerned and confused clients, all wanting to know essentially the same question: how to operate their businesses and keep up productivity and morale, while keeping their workforces relatively safe from COVID-19, all while complying with all applicable laws, which have morphed at rocket pace.
The earlier questions tended to focus on remaining open, staffing, reductions in employee hours, sanitization, and various employee benefits: “Are we an essential business and are we allowed to remain open?” “Can we operate at full capacity?” “What do we do if we need to lay off some employees?” “What is the difference between a furlough and a layoff?” “What about the Families First Coronavirus Response Act and COBRA leave?” “Do we have to pay for COBRA?” “How much leave do we have to give employees and for what qualifying reasons?” “What are the qualifying reasons?” “If an employee cannot return to work when the COVID-related leave is over, do we need to keep open his or her job?” “What do we need to do to sanitize the workplace, or maintain social distancing among our workforce?”
And on, and on, and on. Once in a while, a client’s question was truly unique, for example, “Our employee’s spouse baked cupcakes and the employee brought the cupcakes into work to share. Two days later, the spouse who baked the cupcakes tested positive for COVID-19. Do we have to notify the workforce who ate the cupcakes?” This is a real example, by the way.
Then, as some states lifted mandatory closures and quarantines, employers’ questions pivoted to reopening: “Do we have to be mindful of laws against discrimination when we recall some employees but not others as we reopen and restaff our business?” “What about employees who refuse to return, with or without a doctors’ note?” “Do we need to hire a cleaning company or can we force our workers to clean and sanitize?” “Do we need to provide Personal Protective Equipment (PPE) or can we force employees to purchase their own?” And, most common, “What rules should we implement around mask-wearing?”
This latter question was particularly sticky during periods of time when states did not mandate mask-wearing, but the Center for Disease Control (CDC) strongly recommended it. As masks became politicized, employers faced backlash from segments of their workforce regardless of the mask policies they adopted. The hardest situations for clients appeared to be when company culture encapsulated this chasm in society: management or employees holding very strong opinions about the mask-wearing, CEOs refusing to wear masks, HR professionals attempting to follow best practices recommended by the CDC, or managers taking a casual approach and inconsistently enforcing company policies.
As vaccines became increasingly available, employers again confronted questions about further reopening plans and employees’ return to work, particularly with employees who had reasons (some valid, some excuses) to not want to return to work in person, and again, questions of mask-wearing. As various enforcement agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC), declared that employers could lawfully require employees to be vaccinated against COVID-19 in most circumstances, employers grappled with whether to require vaccinations among their workforce. And once again, company culture and the politicization of science created particularly thorny challenges for employers with these questions.
The most common policy that emerged in many industries was for employers to continue to require employees to wear masks, until and unless employees showed proof of vaccination. Employers struggled greatly with whether or not to require proof of vaccination. On one hand, employers preferred to rely on an honor system for mask-wearing, citing less headache and drama for the employer having to act as the “mask police.”
On the other hand, employers also recognized that many employees who didn’t want to be vaccinated often were the same employees who did not want to wear masks. Employers feared that the honor system would be insufficient to ensure compliance with a policy of vaccination-or-masks, and would fail to instill confidence in employee populations about returning to in-person operations. Ultimately, many employers settled on designating a single employee (an HR representative or otherwise) to receive proof of vaccination status, while maintaining confidentiality, in order for employees to be permitted to remove masks at work.
At the time of writing this article, the story of COVID-19 has taken another twist: the Delta variant (and the emerging Epsilon and Lambda variants). As the Delta variant is reportedly much more contagious, continues to spread rapidly across the globe, and appears poised to take the United States by storm, employers are well-advised to again revisit their mask policies and vaccination policies. In recent days, the CDC has changed its recommendations with respect to masks, again. With concerning figures about continued risks to unvaccinated populations, employers again are having to grapple with questions of masks, mandating vaccines, sanitization, staffing, and more. It is unavoidable that employers will need to address these renewed concerns regarding the delta variant in the coming months.
Adding further complication to these issues is that, anecdotally, many employees and employers appear to be “over it” with respect to COVID-19, and feel ready to resume their lives and work with “normalcy” that existed before COVID wreaked havoc. After 16+ months of pivoting, mask-wearing, arguing over the inexplicable politicization of science, workforces simply have “COVID fatigue” and simply don’t want to think about it or deal with it anymore.
While wholly understandable, none of this eliminates or even reduces employers’ legal (and ethical) obligations to keep their workplaces safe and their workforces healthy. As such, employers are well-advised that the tornados created by COVID have not yet subsided, and that they must remain vigilant and up-to-date about ever-changing laws, recommendations, and best practices. Employers should continue to work closely with their management staff, human resources officials, and outside employment counsel to continue to react and adapt as needed.
Jill R. Cohen is a Princeton, NJ-based attorney with Eckert Seamans Cherin & Mellott, LLC and divides her practice between complex commercial litigation and employment litigation. Jill is experienced in representing corporations, executives, and publicly traded companies in intricate cases involving securities, class action defense, and contract issues, in both individual plaintiff and class action lawsuits. Jill’s employment experience includes representing, counseling, and training employers regarding a variety of employment matters, including discrimination, retaliation, harassment, employee disciplinary issues, individual and group termination, and wage and hour issues.
Eckert Seamans Cherin & Mellott LLC has nearly 375 attorneys located in 15 offices throughout the United States, including Pittsburgh, Harrisburg, and Philadelphia, Pennsylvania; Boston, Massachusetts; Washington, D.C.; Richmond, Virginia; Wilmington, Delaware; Newark and Princeton, New Jersey; White Plains, New York; Buffalo, NY; Providence, Rhode Island; Troy, Michigan; Charleston, West Virginia; and Hartford, Connecticut. The firm provides a broad range of legal services in the areas of litigation, including mass tort and products liability litigation, corporate and business law, intellectual property law, labor and employment relations, aviation law, bankruptcy, and creditors’ rights, employee benefits, environmental law, construction law, public finance, real estate, tax, and estate law, and trucking and transportation law. For more information about the firm, please visit www.eckertseamans.com.