The COVID-19 Public Health Emergency officially ended on May 11, 2023, when the Department of Health and Human Services allowed the federal Public Health Emergency for COVID-19 to expire, but people are still getting COVID-19, and some of them are getting seriously ill from it. The Centers for Disease Control (CDC) tells us that while the COVID-19 burden is currently lower than at previous points in the pandemic, the absolute number of hospitalizations and deaths remains high. Older adults and people with weakened immune systems are at the highest risk of severe illness, and children and adults with no underlying medical conditions can still experience severe illness due to COVID-19.
This article is intended to make employers aware of the latest thinking about COVID-19 in the workplace. It may suggest a need to review and update COVID-19 policies and/or the manner in which they address employees who become ill. At the very least, it is a ready reference to information about COVID-19 in the workplace in late 2023.
Encourage Employees to be Fully Vaccinated with the Updated Vaccines
The basic advice is to comply with the latest CDC guidelines. Most recently, the CDC confirmed that last fall and winter virus season, people who received the 2022-23 COVID-19 vaccine had greater protection against severe illness and hospitalization than those who did not receive that vaccine. It noted that we are still at risk of COVID-19 since the virus continues to change and new variants emerge, that protection from COVID-19 vaccines decline over time, and that an updated COVID-19 vaccine provides enhanced protection against the variants currently responsible for most hospitalizations in the United States.
Insist that Employees with COVID-19 Symptoms Stay at Home
Strains of the virus that causes COVID-19 circulating in 2023 typically took about three days from exposure to showing symptoms. This incubation period is shorter than previous strains of the virus. Employees who believe that they have been exposed should stay home.
People who have COVID-19 can spread the virus starting two days before they develop symptoms (or two days before the date of their positive test if they do not have symptoms) through ten days after they develop symptoms (or ten days after the date of their positive test if they do not have symptoms). They should not be allowed in the workplace during this period of time.
What about Wearing a Mask?
The CDC tells us that masking is still an important tool for preventing the spread of COVID-19. Most employers are leaving the decision about masking to the individual employee, who should consider local COVID-19 case rates, and the employee’s own risk factors and comfort level with potential exposure to the virus, to determine when and where to wear a mask.
Can an Employer Require an Employee to Comply with its COVID-19 Rules?
Employers should look to CDC guidance in deciding what preventive health and safety rules to impose. Those rules might include, among other things, vaccination requirements, social distancing, masking, remote working, remaining away from the workplace, etc. Such rules are permitted, so long as they are supported by business necessity and so long as the employer provides reasonable accommodations to employees who request exceptions to those rules, in accordance with Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and other applicable law.
The EEOC’s latest COVID-19 guidance emphasized that the end of the Public Health Emergency does not limit an employer’s obligation to provide reasonable accommodations when required, based upon an individualized assessment of the employee’s needs, and after engaging in an interactive process with the employee.
Conclusion
The formal National Health Emergency from COVID-19 may be over, but people are still getting sick and employers still have to deal with many of the same issues that arose earlier in the pandemic. The Labor & Employment lawyers at KJK are happy to assist you to implement best practices to keep your employees healthy. Please reach out to Alan M. Rauss, (amr@kjk.com), Robert S. Gilmore (rsg@kjk.com), or any of the other members of our team for additional clarification.