What Does "Endemic COVID" Mean for Employers?

By Heather J. Van Meter - Bullard Law

February 22, 2022

The easing of COVID restrictions around the country amid discussion of “living with COVID” will require employers to be more vigilant in many ways while simultaneously attempting to return to normal or a new normal. Some employers need workers back to work in person, some with and some without masks, some with and some without vaccination or exemptions, and many meeting with customers and co-workers. Other employers have switched to permanent partial remote work, with workers flung throughout the country. Healthcare and other higher-risk employers continue managing vaccination and mask mandates for the foreseeable future. Here are some of the key considerations for employers as we enter the endemic COVID phase.

Returning to Work In Person After Nearly Two Years

Many employers shifted to remote work for some or all employees in 2020, full or part time, and have yet to return to full time in-person work. This remote situation is changing as COVID shifts from pandemic, meaning a severe disease spread over a large area, to endemic, meaning essentially a disease that is common among the people (such as the flu). For employers considering whether, when, and how to reopen their workplaces to either pre-COVID or “new normal” work, endemic COVID also means learning to live with a disease at the workplace. Many employers are yearning for those glorious pre-COVID days when everyone came to work and did their jobs without conflict or drama – oh, wait, that did not exist even pre-COVID! So, in some ways, all employers will have a “new normal” workplace.

Employers needing to determine whether, when, and how to return to an open workplace should consider at least the following:

1. Will employees return to work in person and in sufficient numbers to keep operations going?
2. Can our operations be fully or partially remote/flexible longer-term?
3. Do employees want to return to full-time in-person work or have a modified/flexible schedule?
4. Are we more profitable or effective in-person or remote/flexible?
5. Will some sort of remote/flexible situation mutually benefit the employer and employees?
6. When is it “safe” to return to in-person work, knowing COVID will be considered “endemic” soon, just like the flu?
7. What policies and practices do we need to change to maximize safety, such as requiring employees with symptoms to stay home or be sent home or increasing paid/unpaid sick leave options?
8. If partial remote or flexible scheduling will be used, how will it work, and will it be permanent or only temporary until COVID is better controlled?
9. Will some employees be permitted to work remote or flexible/modified schedules while others are not?

Unions and existing employment contracts also will play a role in this decision-making process.

In some ways, the COVID pandemic has given employers an opportunity to truly consider their workplace situations, including whether a centralized workplace is needed and desired and who needs to be at work and when. All of these considerations are, of course, taking place during a very tight labor market which is not expected to loosen until 2023 at the earliest, and with supply chain disruption issues that also are not expected to subside until 2023.

Also, for these employers, compliance with ongoing OSHA guidelines and health department requirements for maintaining healthy workplaces continues to be required – keep reading.

Mask Mandates Continue Into March – Longer for Some Employers – Then What?

Indoor mask mandates will continue to be in effect in Oregon and Washington until approximately mid-March and then will be lifted for most employers. However, Oregon, Washington, and several other states have left rules in place so that, if needed, mask mandates and other restrictions can quickly be re-implemented. As COVID variants evolve and spread, mask mandates and other steps may rapidly be taken in response. Physical distancing requirements were already removed in most employment settings.

For healthcare and public transit employers, indoor mask mandates and physical distancing requirements are continuing for the foreseeable future, taking decision-making out of those employers’ hands. For all other employers, a decision will need to be made whether to require masks indoors, whether to require masks only for certain workers or situations, or whether to simply ditch all masking. For now, all employers must allow employees to wear masks or respirators if they choose to do so at work.

The U.S. Centers for Disease Control and Prevention recently confirmed what many of us already knew intuitively, cloth masks and ill-fitting masks are less effective at reducing COVID transmission. N95 and KN95 masks, worn properly, provide more protection, although no face mask provides 100% protection. Employers will need to take this information into consideration when deciding whether and what type of masks, if any, to require at the workplace. Other employer considerations for the workplace masking decision include:

1. How closely co-workers work;
2. Whether workers are in closed offices or open spaces and whether masks are required only in open spaces;
3. Whether some employees are immunocompromised;
4. Whether employees should be required to wear masks at all times or only if they choose and/or are symptomatic or exposed to/test positive for COVID;
5. Whether N95 or KN95 masks will be provided and/or required;
6. Whether plastic barriers, if used, will remain in place;
7. Whether employees who have customer or public contact will be encouraged or required to wear masks for the safety of others;
8. Whether eating and drinking will be allowed in certain areas only because masks are not worn while eating or drinking;
9. Whether changes can be made in the workplace to allow employees to safely be mask-free;
10.  And whether compliance and enforcement be easier with a general mask requirement at work rather than selective situations or persons.

In some ways, government mask mandates made employers’ jobs easier by taking decision-making out of the employer’s hands. However, with mask mandates coming to an end, employers will now need to consult with employees, unions and consider the safety of employees, customers, and the general public in crafting masking policies to fit their situations and needs. Bullard Law can assist with creating employer masking policies and addressing the inevitable situations of employee non-compliance.

Employers Are All Done Once Mask Mandates Are Lifted, Right?

Some employers may be under the mistaken impression that once mask mandates are lifted, that is the last step, and employer obligations relating to COVID have ended. Not true.

In Oregon and Washington, and in some other states, OSHA continues to require employers to take numerous steps relating to COVID. These steps include, if not already completed, developing an infection control plan, conducting exposure risk assessments for workers, frequent sanitation, especially of high-touch surfaces and regular cleaning of all workspaces, HVAC quarterly maintenance, and cleaning. For example, even if mask mandates are lifted, employers with customers coming to their buildings may still be required to keep plastic barriers in place as part of an infection control plan, or these plastic barriers may become permanent. All employers must continue providing employees with cleaning supplies and time for cleaning and quarterly HVAC services. “Hand hygiene,” or what we previously called handwashing, is still required, and employees must be given time for hand hygiene. Posters required or encouraged by OSHA should also remain in place. Employers should continue with routine cleaning and sanitation to minimize exposure to worker claims of work-related infection, even though this is not strictly required or enforced except in healthcare settings or with a known COVID case.

COVID exposure notification systems also remain in place for now, meaning employees still need to inform employers if they have been exposed to or test positive for COVID, and employers must then notify affected employees. Although the widespread Omicron variant and lack of universal testing makes the notification system less reliable or relevant, the notification system remains required for now.   

Permanent Remote Workers – But Where Are They?

For employers with remote workers during the pandemic, the “temporary” COVID situation and widespread remote work created a new question, what laws do we need to comply with if workers are spread out in different states? The short answer is that the employer likely needs to comply with the city, county, and state laws where the worker is working and/or living during remote work. If employees are working full-time or even part-time from other cities or states, the employer will need to consider the laws of the other city, county, and state for purposes of wage laws and minimum wages, taxes and withholdings, workers’ compensation insurance compliance, leave laws, paid leave, and workplace safety rules/OSHA – basically all the considerations the employer has at their worksite locations but for every location where a remote worker is working. This includes not only state laws, but also city and county laws and rules relating to employers, as some cities like Portland and Seattle have higher minimum wages and special payroll taxes. This also creates a greater chance of conflicts of laws; for instance, Oregon income tax is generally based on where the work is physically performed, but Washington withholding taxes have a different test.  

Employers with partially remote workers will need to ensure they know where their workers are located and ensure compliance with the laws in that location. Bullard Law assists employers with this process.

Can Employers Still Require Vaccines?

Yes, employers can require vaccines for employees in Oregon and Washington (some public, healthcare, and other employers are required to have vaccine mandates). However, if vaccines are required, employers must also have a process in place for religious/medical/ADA exemptions. Employers will need to consider whether to grant exemptions and what accommodations can be made for employees obtaining exemptions. Employers may consider dropping vaccine mandates because of the potential legal liability, and also because vaccine efficacy decreases over time. Conversely, employers may consider adding booster mandates to existing vaccine mandates. Bullard Law routinely assists employers in all these decisions.

Additionally, as workplaces open closer to full-time “normal” operations, there is greater likelihood that “vaxed vs. unvaxed” disputes will arise. These disputes could increase if unvaccinated employees are required to wear masks or are otherwise readily identifiable as unvaccinated. Employers should carefully consider whether to continue vaccine mandates long-term, whether vaccine mandates are effective, the impact of vaccine mandates on workplace culture and discrimination issues, and whether vaccine mandates create increased conflict among employees. There is no “one size fits all” answer to these questions.

Attracting and Retaining Employees Post-Pandemic

Perhaps the biggest overall consideration as we enter the “endemic” phase of COVID is how employers attract and retain employees in the “new normal.” There is no simple answer to this question, just as there was not pre-COVID. But employers will need to consider their COVID restrictions and rules and the general workplace arrangement and culture as workplaces reopen and employees return to work. Turnover has been high for many workplaces and industries during COVID, and turnover and labor shortages will continue to be high for the foreseeable future, making a true and in-depth analysis of the role of employees and the workplace important for all employers moving forward. Employers should consider this post-pandemic phase an opportunity to re-assess, re-energize, and potentially transform the workplace for the future.

The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.

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