Employer Considerations as Reopening Begins

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As states and local jurisdictions begin the process of reopening in the wake of the COVID-19 pandemic, employers are facing some tough questions.

Declining numbers of hospitalizations and deaths, along with an increase in the availability of vaccines, have triggered the relaxing of certain COVID-19-related requirements. States and local jurisdictions are beginning to lift limits on capacity and eliminate mitigation techniques such as mandatory mask wearing.

In New York and New Jersey, restaurants can operate at 50 percent capacity as of March 19, while California plans to permit theme parks, outdoor stadiums and ballparks to open at reduced capacity starting April 1. In Texas, Governor Greg Abbott issued an executive order rescinding a significant number of his prior executive orders related to COVID-19, including a mask mandate.

However, while some requirements have changed, many federal, state and local rules remain in place. For example, numerous states have enacted COVID-19-specific sick leave laws that remain effective. Numerous states have also released guidance regarding protective measures that employers must implement before allowing employees to return to the workplace.

At the federal level, the Occupational Safety and Health Administration (OSHA) published updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace on January 29. In addition to the general duty imposed by the OSH Act for employers to provide employees with “a place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm,” the updated guidance recommended that employers require masks as a COVID-19 mitigation strategy.

In addition, President Joseph Biden and officials from the U.S. Department of Labor have indicated that employers will face increased enforcement of workplace health and safety standards under the current administration.

Facing the potential for federal enforcement, employers may choose to maintain mask requirements for employees even where states and local jurisdictions no longer require face coverings.

Even Gov. Abbott acknowledged that federal requirements—or employer choice—could mean few changes despite the relaxed state rules, noting that his new executive order “does not preclude businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering.”

Why it matters: Employers need to be aware of the constantly changing rules and restrictions related to COVID-19 on a local, state and federal basis, and must understand the interplay of the various requirements. While some jurisdictions are opening up and relaxing, employers need to keep in mind that mitigation measures recommended by OSHA remain in place.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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