Many things have an expiration date—cheese, meat, medicine, and certain fashion choices. But some things linger well past their “use by” date, like three-week old takeout in the very back corner of your refrigerator.
During the initial COVID frenzy, it was particularly difficult to determine which policies still applied and which ones had expired. In addition to facing local, state, and federal legislation, employers managed a slew of agency directives from the Centers for Disease Control and Prevention (CDC), Centers for Medicare and Medicaid Services (CMS), and Occupation Safety and Health Administration (OSHA).
As we are officially in the season of colds, the flu, holiday parties, and potential COVID upticks, it might be appropriate to pull out various policies and check the label to evaluate your “best by” date.
Paid Leave For COVID
During the height of the pandemic, there were requirements for certain forms of paid leave for employees, but in general, all of those requirements have expired. Through state OSHA agencies, states may have paid leave directives, but in those without directives, there is no secondary paid leave requirement for COVID, quarantine, or infection.
Typically, employees are told to use their PTO or sick banks to be paid for the required time away from work. Employers can continue to have specialized time-off banks for COVID-related absences, but it’s not required in those states without established paid leave requirements.
Unemployment Compensation
Federal funds and special rules extending unemployment compensation for those unable to find work during the pandemic expired long ago. As a result, some states have since passed new statutes limiting the time a person can receive unemployment benefits. In Iowa, for example, the statutes changed the allotment from 26 weeks to 16 weeks.
Identity Theft
Over the last several years, identity theft has been a significant issue in many areas, such as false unemployment claims (particularly when there were premiums and extended payments available) to falsification of SBA loan applications. Recently, there has been a reported uptick in fraudulent DHS benefit applications as well.
The federal government continues to sponsor a state hotline to report unemployment compensation identity theft. To ensure accuracy, employers should continue to carefully monitor unemployment compensation and any other governmental forms that relate to benefits, wages, or paid items.
Workers’ Compensation
During the pandemic, many employers were concerned there would be an enormous deluge of workers’ compensation claims alleging that employees caught COVID-19 or other illnesses at the workplace.
For the most part, this didn’t happen because of the widespread level of infection and the likelihood of community exposure. Some states, however, passed specialized legislation relating to workers’ compensation and COVID-19 claims and those rules are still in effect.
OSHA and Recordkeeping
Some employers are required to keep a version of the OSHA 300 logs in the workplace. When a case of COVID-19 is confirmed in the workplace, it’s logged in the same way as any other workplace acquired illness. OSHA and several other agencies have indicated that illnesses are likely work-related if there’s a cluster of cases at work and if employees get sick after close exposure to others with COVID.
While healthcare is subject to stricter rules, one primary piece of guidance has long been expired—the OSHA Emergency Temporary Standard for Healthcare Entities. OSHA indicated, however, that it would “vigorously enforce the general duty clause” with an emphasis on personal protective equipment (PPE) and respiratory protection standards.
Masking
While the CDC, OSHA, and other agencies haven’t always been consistent with their masking requirements or suggestions, OSHA has continued to emphasize the general duty clause to help employers keep employees protected from COVID. The general duty clause recommends that workplaces should have masks available to all employees who want them.
OSHA consistently indicates that risk of infection is higher for employees who have significant contact with the public, particularly in areas where there may be high transmission. Employers are charged by various agencies to continue to monitor transmission rates in their communities to assess safety.
In the healthcare setting, certain areas (such as the emergency room or urgent care) may have a greater risk of potential transmission due to the nature of walk-in appointments, compared to those in the accounting department or other administrative areas.
On September 23, 2022, the CDC issued updated masking guidelines for healthcare. The guidance recommends that employers should:
- Make sure that employees and visitors are aware of your COVID protocols, which include signage relating to handwashing and similar items;
- Post signs stating individuals who are positive for COVID, have been in close contact with an infected person, or have symptoms of illness should not enter the facility; and
- Continue to optimize indoor air quality.
Quarantine
In August, the CDC updated its guidance on quarantine. Instead of quarantining after exposure, the guidance states an individual who has been exposed to COVID should wear a high-quality mask for 10 days and get tested for the virus on day five. If a person tests positive, they should stay home for at least five days, and it’s recommended that they wear a high-quality mask through day 10.
The CDC also notes that not all COVID infections are the same, so if the illness is severe or the employee has a weakened immune system, that person should consult with a physician prior to ending isolation. This can be a tricky assessment for an employer and likely should be deferred to a healthcare provider.
Vaccinations
The vaccination issue is state and industry specific. Federal agencies continue to encourage employers and others to run educational programs about COVID vaccines (including boosters), as well as flu shots. Vaccination requirements for most non-healthcare industries were rescinded or are no longer applicable.
In the healthcare industry, however, CMS regulations regarding vaccination programs and standards remain in effect. While some states have passed statutes changing the nature of information that required to obtain a vaccine exemption, CMS has specifically stated that its requirements for exemption supersede state law. Under the CMS requirements, the ability to obtain a medical exemption status is limited and requires significant medical information.
Requests for religious exemption typically require more information than would be provided under the state statute. These requests follow Title VII of the Civil Rights Act of 1964 procedures.
Bottom line
Employer requirements for situations related to COVID-19 can change quickly. It’s impossible to determine how the upcoming season will affect COVID rules as we wait for new variants and issues to arise. Despite COVID fatigue, employers need to continue to monitor changing rules and update policies as needed.
Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines. You can reach her at joellen.whitney@dentons.com.