Employers were forced to act quickly when the COVID-19 pandemic shut down the economy in March 2020.
There wasn't time to plan a graceful exit.
Business experts recommend using this time to take a more informed approach to workers' return.
Even so, John Urbahns, Greater Fort Wayne Inc.'s CEO, said his organization hasn't provided guidance on the subject to its members.
“We have suggested to businesses that they consult their attorneys for determination on how they should handle their individual situations,” he said in an email. “Every business is different, and they need to seek specific guidance.”
Mark Kittaka, a partner with Barnes & Thornburg, advises his legal clients to consider state and local requirements, which can vary significantly, before making decisions.
Kittaka visited Chicago over the Memorial Day holiday weekend and encountered restrictions Indiana has phased out. Face masks were required everywhere in public, even for people who are fully vaccinated, and retailers imposed strict customer capacity limits.
“Some of the states are just more open than others,” he said during a phone interview.
Protecting at-risk workers
Assuming they comply with state coronavirus restrictions, employers have some leeway when adopting workplace rules, said Kittaka, who works in the firm's Fort Wayne office. But that sounds easier than it is.
Initially, confusion came from differences in what the Occupational Safety and Health Administration requires versus guidance provided by the Centers for Disease Control and Prevention. Both are federal agencies.
Until mid-June, OSHA's website said workers shouldn't be treated differently based on vaccination status, a rule the agency adopted months earlier. But since then, the CDC has said face coverings aren't needed for fully vaccinated Americans.
OSHA updated its guidance June 10 for employers not in the health care industry. The agency's language can be found at www.osha.gov/coronavirus/safework. Kittaka summarized the changes.
The big distinction now is between fully vaccinated and “at-risk workers,” which includes both unvaccinated employees as well as vaccinated employees who have other conditions that might limit the worker's response to the vaccine, including being organ recipients on immunosuppressing drugs, he said.
The old recommendations regarding face coverings, social distancing and cleaning protocols now appear to focus on protecting the at-risk workers in the workforce. OSHA has accepted the CDC's position that fully vaccinated people are generally protected from the coronavirus.
Unless employers can prove that 100% of their workers are vaccinated, however, they still have to take precautions to protect at-risk workers, Kittaka said.
Employers must provide free face coverings to at-risk workers, who should use the masks to cover both the nose and mouth. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth to make it easier for workers to read lips, according to OSHA's guidance.
Unless otherwise provided by federal, state or local requirements, unvaccinated workers who are outdoors may choose not to wear face coverings unless they are at-risk. Regardless, all workers who want to continue wearing face coverings should be provided masks, the agency said.
Workers could quit
Even though OSHA has eased its face-covering requirements, nothing prevents employers from requiring all workers wear a face mask while on the job.
Kittaka said many of his clients, who are primarily manufacturers, are reluctant to embrace such a requirement, however, because employees don't like wearing masks. The hot summer months will only deepen their dislike, he said.
Also, such a rule would be a competitive disadvantage.
If a nearby factory doesn't impose a mask mandate, workers could quit in favor of a job in the less restrictive environment, he said. With the current labor shortage, many manufacturers have multiple job openings and might not want to lose experienced employees.
But Kittaka isn't swayed.
“Losing a few workers, to me, isn't worth doing away with your mask policy,” he said.
One way to avoid mask requirements is to require vaccines instead.
“It is legal to mandate vaccines,” Kittaka said, adding that exceptions must be made for health and religious reasons.
If an employer decides vaccinated workers don't have to wear face masks, officials must ask workers to show proof of vaccination and protect individual workers' vaccination status to avoid running afoul of federal safe workplace rules, Kittaka said.
“You can't just trust them,” he said of workers seeking mask exceptions.
That option comes with a potential pitfall. Suppose everyone stopped wearing masks in the workplace after only a portion of staff members provided vaccination proof, Kittaka said.
If an OSHA inspector stopped by in response to a worker's safety complaint, he said, the company could be found in violation of the agency's guidance.
Supervisors would become, in effect, the mask police, Kittaka said. But it's nearly impossible to remember every employee's vaccination status when a workforce includes hundreds.
He asked: “How are we supposed to deal with that in the real world?”
At a glance
Lattice, a human resources consulting firm, compiled a list of questions employers can ask workers in a back-to-work survey. The firm warns “it would be a mistake not to solicit employees' input.” Questions included:
What would your ideal working arrangement be until the end of the year? While some employees might be comfortable returning to work, they might not want to commit to the usual five days per week, Lattice advised.
What safeguards or precautions would you expect to be available before feeling safe to return to the office? Give employees a range of options to choose from that your team can actually execute, the consultants recommended.
What concerns you the most about returning to work? Examples can include child care, productivity and exposure to the virus.
What motivates you the most about returning to work? Examples can include easier collaboration, improved productivity and interacting with co-workers.