COVID-19 in the Workplace Post Omicron
Nearly two years ago, Connecticut recorded its first case of COVID-19. As we approach March 2022, employers and employees are continuing to navigate a rapidly evolving work environment.
CBIA HR counsel Diane Mokriski says employers are finding themselves in new situations with their employees related to sick leave, and in some cases employers are struggling to get employees to return to the office.
Carmody Torrance Sandak & Hennessey partners Nick Zaino and Vincent Farisello, who appeared with Mokriski in a Feb. 14 HR Hotline Live webinar, have fielded similar questions from clients.
The Occupational Safety and Health Administration’s withdrawal of its Emergency Temporary Standard meant that employers were no longer required to enforce vaccination and testing policies.
However, companies who voluntarily choose to keep their policies in place certainly have the right to do so.
Generally speaking, many attorneys recommend, even without the OSHA ETS in force, it is a good practice for employers to have policies in place related to employee safety and coronavirus best practices.
“I do think it is important that employers continue to have a written program and written standards for dealing with COVID in the workplace,” Zaino said.
“I think it is critical.”
General Duty Clause
OSHA has made it clear that it will continue to enforce the General Duty Clause, which requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm.
If any claim is made to OSHA that an employer is not taking steps to protect employees, Zaino said an employer will want to have protocols and other information readily available to fulfill OSHA’s request for information.
COVID-19 protocols are constantly evolving, so Mokriski pointed out that not all policies need to be included in an employee handbook.
“Employers should remember that you don’t have to have it in your handbook in order for it to be true,” she said.
For example, if COVID-19 cases are high at one point in time, an employer can decide to implement a temporary mask mandate and remove it when the employer feels the time is right.
Handbooks are generally meant for policies that an employer can envision being in place for the long term.
Employers do have an obligation to record and report work-related illnesses and injuries.
If an employee tests positive for COVID-19, an employer should take reasonable steps to determine if there is a strong likelihood the employee contracted the virus in the workplace.
“I try to go back to see whether there is some objective evidence, some objective basis to determine that it is work related,” Farisello said.
Zaino added employers should be careful to make a conclusion without doing their due diligence.
Did other employees who work near that person also test positive for COVID-19? Did no other employees test positive? Did family members of the employee test positive?
There is currently no statute or law in Connecticut that requires employers to provide COVID-19 related leave or sick time if an employee tests positive for the virus.
Some states, like New York, chose to require a certain amount of days off related to COVID-19. Connecticut employers have their own discretion about how to handle sick leave.
Zaino said there are pros and cons about why an employer would want to provide a limited time of COVID-19 leave.
Additional COVID-specific sick days may encourage employees not to come to work if they have symptoms of COVID-19 or know they were exposed.
In some severe cases, employees can qualify for leave under the new paid family leave law.
Generally, mild cases will not fall under this category, but if a person is hospitalized for an extended period of time, they may qualify.
The Connecticut Paid Leave Authority offers information related to COVID and paid FMLA.
Some employers feel they give employees an adequate amount of sick and PTO, so they chose not to give additional sick time for a positive COVID-19 case.
Mokriski recommends following guidance from the U.S. Centers for Disease Control and Prevention when it comes to quarantining and isolation.
Some employers also implemented longer isolation measures for employees who test positive for COVID-19.
Regardless of a positive case or exposure, Farisello said employers should keep in mind the CDC considers the date of exposure or initial symptoms as day 0 for their timelines.
It is not recommended that an employer require a negative test if an employee is returning to work after recovering from COVID-19 as people who recover from COVID-19 may test positive for an extended amount of time.
Returning to the Office
Office policies and return-to-the-office plans are left to an employer’s discretion.
“If as an employer, it works better for your business to have people back in the office, it is within your prerogative to do that,” Farisello said.
The caveat is when you have an employee who has a legitimate medical disability that puts them at risk.
Mokriski said an employer has the right to terminate an employee who refuses to come back to work if the employee does not have a medical disability that prevents them from being in a work environment where COVID-19 is still present.
Zaino suggests employers engage with their employee who has concerns about returning to the office.
“I would suggest the employer communicate, in writing, with that employee, documenting some of the efforts the employer is taking to provide a safe workplace,” Zaino said.
If an employer has a strong program, they should produce the data and information to support that program.
HR Hotline Live: Managing COVID-19 in the Workplace was made possible through the generous support of Carmody Torrance Sandak & Hennessey LLP.
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