Governor Wolf’s office announced on Tuesday that all COVID-19 mitigation orders will be lifted on Memorial Day, except for the mask mandate. While this is certainly welcome news, and another sign that the pandemic might be on its way out, it is not necessarily a free pass for employers to throw all caution to the wind.
What DOES this mean for employers? The Governor’s office has not yet provided specific details, but it appears that the administration plans to lift all COVID-19 mitigation orders (except mask requirements), including the orders issued by the Secretary of Health in April, July, and November 2020. These orders placed onerous burdens on businesses to institute strict mitigation measures, or face the threat of penalties, including shutdown.
In other words, it appears that as of Memorial Day, Pennsylvania will no longer require businesses to do things like maintain cleaning protocols, implement temperature screens, stagger work start and stop times, provide sufficient space for employees to maintain social distance while on breaks and meals, conduct meetings virtually, provide employees with access to regular handwashing, or prohibit non-essential visitors from entering the premises, among other COVID-19-related restrictions.
The mask mandate will remain in effect until 70% of adult Pennsylvanians are fully vaccinated – meaning two weeks have passed since they have either received the second dose of a two-dose vaccine regimen or one dose in a single dose regimen.
In the short-term, it means that Pennsylvania employers must continue to comply with the mandates of the Department of Health’s orders until Memorial Day. It also means that Pennsylvania employers must continue to mandate masks for the foreseeable future (it is not clear if or when Pennsylvania may reach the 70% mark for fully vaccinated adults).
What this DOES NOT mean for employers. Although the various safety and mitigations orders may be lifted as of Memorial Day, it is important to recall that the CDC’s recommendations will continue to have a profound impact on how employers should maintain the workplace. For example, the CDC continues to recommend that unvaccinated employees quarantine after an exposure to COVID-19. The CDC also recommends that all businesses have a plan in place that is specific to the workplace, identifies all areas and job tasks with potential COVID-19 exposure, and that businesses implement control measures to eliminate or reduce exposure.
In light of these recommendations, the federal government continues to posture for increased enforcement efforts. OSHA issued a national emphasis program in March intended to notify certain high-risk industries of the possibility of on-site inspections, even without a complaint from an employee. Employers in the healthcare, food processing, and general warehousing industries should be particularly conscious of the possibility of an OSHA inspection in the next 12 months.
In addition, OSHA submitted its emergency temporary standard on COVID-19 to the White House’s Office of Management and Budget for review on April 26, 2021. It remains uncertain what this nationwide standard will be, but based on OSHA’s guidance to date, and reports from the DOL, it could include measures like requiring employers to have a written plan, supply masks, enforce social distancing, maintain cleaning and disinfection measures, and to train workers on workplace safety as it relates to COVID-19. We will provide an update on this emergency temporary standard if and when it is issued.
To summarize, although employers can certainly breathe a sigh of relief that Pennsylvania is now poised to put most COVID-19 restrictions in the rearview mirror, employers should be cognizant of the federal government’s increased focus on workplace safety and enforcement. Maintaining a workplace free of the hazard of COVID-19 exposure is more important now than ever.
For more information, please contact any member of the McNees Labor & Employment Group and plan to attend the 2021 McNees Labor & Employment Law Seminar to be held virtually on June 10th and 11th.