Is the COVID-19 Pandemic Over? For Employers, Not Yet

For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic.  Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.

Continuing States of Emergency

First, although most U.S. states are no longer subject to COVID-related emergency orders, several such orders remain in place, even if only for a few more days or weeks. Included among those states with a current emergency order related to COVID-19 are California, Colorado, Connecticut, Illinois, Texas, and Washington. What’s more, COVID-19 remains a national emergency and public health emergency under federal law. While the specific impact of these orders varies by state, emergency orders generally provide governments with special legal and operational mechanisms for responding to a declared emergency. As a result, so long as these COVID-19 emergency orders remain in effect, employers within the relevant jurisdictions will continue to be subject to their requirements and prohibitions.

Workplace Safety Regulations

Second, employers may still be subject to certain COVID-specific workplace safety rules and regulations. Under state law, these requirements can be extensive. For example, in California, employers must still comply with the California Division of Occupational Safety and Health COVID-19 Prevention Emergency Temporary Standard (Cal/OSHA ETS), which was initially adopted in November 2020 and revised several times. The Cal/OSHA ETS outlines, among other things, specific communications, planning, testing, and recordkeeping requirements for employers within the state. Although it is set to expire on December 31, 2022, the Cal/OSHA Standards Board has proposed a permanent COVID-19 prevention standard to go into effect on January 1, 2023. The specific requirements for the proposed permanent standard are still being established, but if they are adopted, employers within the state will need to familiarize themselves and be prepared to comply with the new requirements, which may require an update to employers’ existing Illness and Injury Prevention Plans (IIPPs), rather than a separate COVID standard.

In addition to the proposed permanent standard, California Governor Gavin Newsom signed two bills into law on September 29, 2022, further extending the state’s COVID-related workplace laws:

• AB 2693 modifies employers’ notice requirements regarding COVID-19 workplace exposures and extends these obligations until January 1, 2024; and
• AB 1751 extends the presumptions under California law that certain workers’ compensation claims related to COVID-19 illness or death are compensable until January 1, 2024.

While California’s COVID-19 workplace safety regulations broadly impact employers in the state, other state and federal safety laws continue to apply to specific industries, workplaces, and employees.  For example, just last month, the Oregon OSHA adopted a revised permanent COVID-19 safety rule for “exceptional risk workplaces,” which includes any setting where an employee performs, among other things, direct patient care, emergency first responder activities, direct client service in residential care or assisted living facilities, and/or environmental decontamination services in a healthcare setting.

Similarly, the federal Occupational Safety and Health Administration (OSHA) has also been active in regulating workplace safety during the pandemic. Although late last year the agency withdrew most of its Healthcare Emergency Temporary Standard (Healthcare ETS) that was adopted in June 2021, since that time, OSHA has been working to implement a permanent version of the Healthcare ETS. We anticipate that the permanent standard will soon be published and employers in the healthcare sector will once again need to be prepared to comply with relevant federal requirements. In addition, recipients of federal Medicare and Medicaid funding remain obligated under the federal Centers for Medicare & Medicaid Services (CMS) interim final rule, which was upheld by the Supreme Court of the United States early this year.  Even if an employer is not covered by the Healthcare ETS or is not a recipient of federal Medicare and Medicaid funding, OSHA has been consistent throughout the pandemic that employers generally are obligated to prevent occupational exposure to COVID-19 under the General Duty Clause of the federal Occupational Safety and Health Act, which requires employers to provide a safe workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

Moreover, state workplace safety laws that were enacted during the pandemic to address diseases beyond COVID-19 may still yet impact employers. For example, in spring 2021, New York State adopted the Health and Essential Rights Act (HERO Act), which generally requires employers to develop and, when triggered, implement a workplace safety plan for responding to airborne infectious diseases that present a serious risk of harm to public health. COVID-19 qualified as an airborne infectious disease that triggered employers’ safety plan obligations under the HERO Act, but, as we previously reported, that designation was removed in March 2022. However, as we head into winter, if new variants of the virus take hold and a surge of COVID-19 cases returns (as happened with the Omicron variant last winter), New York could again designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health.  If this happens, employers in New York would be required to implement their HERO Act workplace safety plans once again. Even absent such a re-designation, New York employers are still required to post their HERO Act plans in the workplace and include a copy in employee handbooks.

Finally, in the context of the federal Americans with Disabilities Act (ADA), employers should be aware that the less dire the threat of COVID-19, the more limited they may be in voluntarily implementing workplace safety programs. For example, for the first two years of the pandemic, the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing federal anti-discrimination laws, took the position that employers had blanket permission to use viral tests to test employees for COVID-19 without violating the ADA, given the threat of COVID-19. In July 2022, however, the EEOC updated its guidance: now, employers may only use viral COVID-19 tests if they make an individual assessment to determine whether such testing is job-related and a business necessity. In conducting this individual assessment, employers must consider a variety of factors, including community transmission rates, the transmissibility/severity of the relevant COVID-19 variant, and employee vaccine rates. As such, even for employers operating in jurisdictions that no longer require COVID-related workplace safety programs, to the extent employers continue to implement their own COVID-related policies, the pandemic (and its evolution) will continue to impact employer legal obligations.

Extended COVID-related Leave Laws

Third, several state laws continue to require employers to provide workers with COVID-related leave, including California, Colorado, Nevada, and New York. The scope of these laws can vary significantly.  For example, Colorado’s Healthy Families and Workplaces Act (HFWA) provides employees with supplemental paid sick leave for public health emergencies.  Because both federal and state COVID-19 emergency declarations/orders remain active, employers in Colorado must continue to provide covered workers with supplemental paid sick leave under the HFWA until at least November 10, 2022. As we previously explained, in the context of COVID-19, this supplemental paid sick leave may be used for a variety of reasons, including to recover from a COVID-19 diagnosis, to quarantine/isolate after a COVID-19 exposure, to obtain COVID-19 testing or a vaccine, and/or to care for the COVID-related needs of family. In contrast, Nevada’s COVID-related paid leave may only be used to obtain a COVID-19 vaccine and the law is currently set to expire on December 31, 2023, regardless of whether a federal or state emergency order remains in place. California’s 2022 COVID-19 Supplemental Paid Sick Leave (SPSL) program was recently extended through December 31, 2022, providing up to 80 hours of leave for a variety of COVID-related reasons, and a San Francisco Public Health Emergency Leave bill will pick up when the statewide leave ends. New York State also recently extended its law requiring paid leave for COVID-19 vaccination, extending its effective date through December 31, 2023, and also continues to require employers to provide paid COVID-related leave. New York City’s vaccine-related leave law for employees who accompany a child to be vaccinated, will also run through the end of 2022.

It Ain’t Over ’til It’s Over

Although much has changed since March 2020, with so many COVID-related emergency orders, workplace safety, leave, and more laws still in effect across the country, employers should remain diligent in their efforts to safely operate as long as COVID-19 continues to pose risks, including by:

• Continuing to monitor federal and state legislatures’ COVID-19 activities;
• Staying current on (ever-changing) public health guidance;
• Being prepared to adapt current policies and practices to accommodate new variants, surges, and/or transmission rates of COVID-19; and
• Maintaining clear and open lines of communication with employees to discuss concerns and reinforce workplace safety priorities.

Finally, it is important to note that the above points of information are not the only reasons that employers need to keep paying attention to the pandemic.  For example, non-COVID specific laws, such as general paid sick leave laws, and federal employment laws, remain relevant to many employment situations as the pandemic wears on. In addition, many employers continue to be subject to other COVID-19 requirements, such as vaccine requirements, not discussed here but nonetheless important to consider (and where vaccines are mandated, many states still maintain requirements to accommodate employees other than for medical and religious reasons and/or not to discriminate or take other actions based on vaccine status).