Obviously, the big news of last week was that a federal court struck down the mask mandate for public transportation.
But from a bigger employment law perspective, there may be other rules with a shelf life too. The road we are travelling on is not in a straight line. The big question for now is when will those pandemic-related rules change?
To be clear up front, the rules that will NOT change (absent new legislation) are things like an employer’s ability to impose a mandatory vaccination policy. The laws governing such policies are established and will not change even when this pandemic subsides.
(Whether private employers will continue to adopt them is an issue for another day.)
Rather, the issues and rules I’m talking about are more nuanced.
For example, take this Q&A from the EEOC’s “What You Should Know” about COVID and various laws page.
[Question] A.12. During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick?
[Answer] Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.
Note this language: “Due to the COVID-19 pandemic”. This language recognizes that during this time period, there are slightly different standards that should be applied to ensure that public health is addressed. Thus, the EEOC has decided for now that while employers normally shouldn’t be asking employees about medical information, they are allowed in this situation to keep the workplace safe.
Another issue that is likely to arise is for how long should COVID-19 be considered a “direct threat”? Take this language from the EEOC’s pandemic guidance:
Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and other public health authorities have acknowledged that COVID-19 is highly contagious and potentially fatal. Due to the community spread of COVID-19 in the United States, these authorities have issued precautions to slow the spread, such as urging significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion or instituted masking requirements in public places. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.
In simple terms, what does this mean? It suggests that if there comes a point in time when the CDC determines that the spread and severity of COVID-19 is minimal, employers may have a more difficult time excluding individuals with COVID-19 from the workplace based on the “direct threat” that they may pose.
For now, employers can continue to tweak their operating principles to fit the needs of the business while still keeping workplaces safe. But nothing lasts forever — even this pandemic will end. And some of these pandemic-related rules will change back. Eventually.