Considerations of Employers at the Beginning of the Reopening | Manatt, Phelps & Phillips, srl


As states and local jurisdictions begin the process of reopening in the wake of the COVID-19 pandemic, employers face difficult questions.

The drop in hospitalizations and deaths, as well as an increase in vaccine availability, has triggered the relaxation of some requirements related to COVID-19. States and local jurisdictions are starting to lift capacity limits and phase out mitigation techniques such as mandatory masks.

Restaurants in New York and New Jersey can operate at 50% capacity starting March 19, while California plans to allow theme parks, outdoor stadiums and reduced capacity stadiums to open. from April 1. In Texas, Governor Greg Abbott issued an executive order. overturning a significant number of its previous executive decrees related to COVID-19, including a mask warrant.

However, although some requirements have changed, many federal, state and local rules remain in place. For example, many states have enacted COVID-19 specific sick leave laws that remain in effect. Many states have also issued guidelines regarding protective measures employers must implement before allowing employees to return to the workplace.

At the federal level, the Occupational Safety and Health Administration (OSHA) released updated guidance on mitigating and preventing the spread of COVID-19 in the workplace on January 29. In addition to the general obligation imposed by OSH law on employers to provide employees with “a workplace … free from recognized hazards which cause or are likely to cause death or serious physical harm”, the guidelines set out updated recommendations that employers require masks as a COVID-19 mitigation strategy.

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

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

Even Governor Abbott acknowledged that federal requirements – or employer’s choice – could mean little change despite the state’s relaxed rules, noting that his new executive order “does not preclude businesses or others. establishments to require employees or customers to follow additional hygiene measures, including the wearing of a face covering.

Why is this important: Employers should be aware of the evolving rules and restrictions related to COVID-19 on a local, state and federal basis, and should understand the interplay of the different requirements. As some jurisdictions open and slacken, employers should keep in mind that OSHA recommended mitigation measures remain in place.


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