When we last left our story two weeks ago, the numbers in Los Angeles County had technically entered the COVID-19 high level, Los Angeles Department of Public Health (LADPH) had been threatening to invoke mandatory mask mandates as of July 14. Instead, they told residents to “take precautions” to limit the spread and reminded employers of their right to require masks at their places of employment, and bought us two more weeks. “If LA County remains in the High COVID-19 Community Level for two consecutive weeks, universal indoor masking will be implemented on July 29 to help slow the rate of transmission and protect those most vulnerable.”
Well, as July 29 loomed closer, cities like Beverly Hills and Pasadena, along with business groups like the California Restaurant Association, really started pushing back. Nobody wanted to enforce another mask mandate. Plus, I think the County weighed the short term effect of wearing anything other N-95 masks against the disruption. And this latest surge, which never hit the catastrophic levels we saw with Omicron, had already started to wane. Consequently, LAPHD called an audible and paused the mask mandate.
As I said at the start of the year, living in 2022 is much like living with aftershocks after a major earthquake. We never know when it is really over, and it may never truly be over. A major earthquake shifts the plates around it forever, and even if the after shocks from that particular earthquake may eventually stop after years, it forever changes the landscape around it. So, too, will this pandemic. But in the more immediate term, my next article focuses on the present as we shift from pandemic to endemic life.
REVIEWING YOUR CURRENT WORKPLACE POLICIES AS WE TRANSITION FROM PANDEMIC TO ENDEMIC LIFE
Recently, I caught an article focusing on some new regulations issued by the EEOC regarding mandatory on-site COVID testing. The regulations were issued back on July 12, but as very few of my clients mandate regular COVID testing for their employees, the regulations probably escaped me in real time. But now that I read them, I note that they foretell a subtle but extremely important shift in the way these federal agencies are beginning to view the laws surrounding COVID.
In particular, where the EEOC had previously supported the right of an employer to require regular on-site COVID screening of its employees (absent a showing of a need for an accommodation), the EEOC is now taking the position that the employer must show that this “medical examination” is job-related and consistent with business necessity, so that the employer must demonstrate with objective evidence that they reasonably believe that either: either: (1) the employee’s ability to perform essential job functions will be impaired by a medical condition, or (2) the employee will pose a “direct threat” ― meaning a significant risk of substantial harm ― to themselves or to others. The reasoning by the EEOC is that we are moving from pandemic to endemic conditions.
The reason I say this is a major shift is because the EEOC, the Equal Employment Opportunity Commission, is the agency which has provided the support to employers throughout this pandemic. When the pandemic first hit, it was the EEOC that blessed the right of employers to ask all those pre-employment questions and take employee temperatures. I have to tell you, those first few weeks of March, 2020, when OSHA first started talking about pre-employment checks, we were all shocked. But the EEOC quickly jumped in and explained that it was a whole new world. When employees would push back and try to proclaim their “HIPAA and privacy rights” (and always spell “HIPPA” wrong), it was the EEOC that said “nope, first of all, HIPAA does not apply, and second, this is a pandemic, and special rules apply during a pandemic.”
We have spent two and a half years spouting the line “pandemic rules” in response to a lot of questions, when it seemed that we were taking actions that we would not otherwise be authorized to take in non-COVID times. Having a worldwide health crisis did permit us, as employers, to enact some bolder measures to protect the safety of our workforce.
But what the EEOC is signaling here with these new testing regulations is that those times are coming to an end. As we shift from pandemic to endemic, so too, must we look to some of the latitude we took with our workplace policies. It may be time to reel it in.
So what does that mean with respect to mandatory vaccination policies? For one, if you read the most recent FAQs on vaccines, the EEOC has now changed its guidance with respect to individuals who are claiming disabilities, putting the burden on employers to meet the above “business justification” test with respect to those individuals. Whereas before, the vaccination program was presumed to be valid and the burden was really on the individual to demonstrate the legitimacy of the request for the accommodation, that burden test has now shifted.
I have to confess that my practice has not seen a lot of litigation surrounding vaccination policies, testing policies and masking policies. I saw a lot of employee letters, some emails from angry members of the public, and a few lawyer demand letters. But I personally at least did not have one litigation move forward on these issues. I really think that was because the agencies and courts were supporting these mandates. But I think those days are coming to an end. I think the shift in these EEOC regulations , albeit subtle, is a tap on the shoulders of employers that it’s time to review these policies now and really think about when and where we want to extend them. If you are in healthcare, a school system (especially younger children), transportation, maybe food production or another area that is safety sensitive or public facing, or if there is surge going on, there may be a reason to require certain precautions. But if you are in an every day manufacturing or office setting, I’m not sure that you are going to be able to require regular testing or vaccinations. You are going to have to get ready to prove this business justification and allow a lot of room for accommodations.
And ALWAYS remember, if you are in California and neither the state or federal government is requiring the testing, you as the employer must be paying for the cost of the test and/or the time to take it. Most of these discussions involve on-site testing, so the presumption is it’s done at work and on the clock. But if these requirements are employer made, they are employer-paid.
COVID RULES STILL IN PLAY – SORT OF
Now just as I am telling you that the EEOC is changing its regulations as we move from pandemic to endemic, the California Labor Code is still in force. The Labor Code requires you to notify all workers who to report to the worksite within 24 hours when one of their co-workers tests positive for COVID, and that law is still in effect. Similarly, there are still special rules regarding “outbreaks,” that is, when three or more of your on-site workers test positive within a 14 day period, and some of you have called with those circumstances with this latest surge. There are obligations to notify your County, notify your employees, and provide free and regular testing to your employees, although the requirements have changed slightly since the ETS were amended recently. I will be honest – do I think the County is out in force monitoring enforcement of these rules like they were a year ago or even six months ago? No, and most of these laws will sunset at the end of this year. But no one is going to take them off the books in the next five months, so there they are. If you have questions about compliance, as always, you know where to find me.
That’s it for this Monday. I really wanted to address some mental health issues, as so many of you are calling about employee issues that have been surfacing within your workforces. I will try to touch on that next week. It continues to be a challenging year for so many of us. And for all of you, stay safe as this latest surge tails off. It’s August, there are muggy, unstable skies and thunderclouds in the distance, but cooler skies are ahead if we can just keep breathing. And . . .football on the horizon. 😊
#StandWithUkraine