Many things have an expiration date - cheese, meat, medicine, 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 could be particularly difficult to determine what applied and what had expired. Employers faced local, state, and federal legislation, tracking national and local lawsuits regarding what rules applied and what didn’t, as well as managing a slew of agency directives including CDC and CMS requirements, OSHA, and people yelling at them on social media. As we head into the season of colds, flu, holiday parties, and likely 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

At various points of time during the height of the pandemic there were requirements for certain forms of paid leave for employees, but in general, all of those requirements expired. There are some states which may, particularly through state OSHA, have some paid leave directives, but in Iowa, there is no secondary paid leave requirement for COVID, quarantine, or infection. Employees typically can be directed to use their PTO or sick banks in order to be paid for the required time away from work. Employers can continue to have specialized time-off banks, but it is not required in Iowa.

Unemployment compensation

For those who were unable to find work, there were federal funds and special rules extending unemployment compensation. These rules and federal funds expired a while ago. The Iowa legislature passed new statutes which limits the time a person can receive unemployment benefits, changing the allotment in Iowa to 16 weeks from 26 weeks. There are also a number of other rules relating to unemployment and whether or not an employee may qualify for benefits.

Identity theft

Over the last several years, identity theft certainly has been a significant issue with everything from false unemployment claims, particularly when there were premiums and extended payments available, to falsification of SBA loan applications. Recently, there’s 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 relating to benefits, wages, or paid items that may come to their attention.

Workers’ compensation

Many employers were concerned that there would be an enormous deluge of workers’ compensation claims relating to allegations of acquiring COVID-19 or other illnesses within the workplace. For the most part, this did not materialize given the widespread level of infection and the likelihood of community exposure. Some states did pass specialized legislation relating to workers’ compensation and COVID-19 claims and those rules are still in effect. It is important to check your individual state, and if you are a multi-state employer, realize that these requirements and workers’ compensation issues may vary from state to state. Iowa has no statute which would amend its workers’ compensation coverage or laws in relationship to COVID.

OSHA and recordkeeping

Some employers are required to keep a variant of the OSHA 300 logs. When COVID is workplace-acquired it’s then logged in the same way as any other workplace-acquired illness. OSHA and a number of other agencies have indicated that illnesses are likely work-related if there is a cluster at work, if you have illness after a lengthy and close exposure to others with COVID, or under similar circumstances. There are also direct concerns with people who work in high-contact areas with the general public, particularly if there are high community transmission rates.

While healthcare is subject to additional and more detailed rules, one primary piece of guidance has long been expired - the OSHA Emergency Temporary Standard for Healthcare Entities. However, OSHA did indicate that it would “vigorously enforce the general duty clause” with an emphasis on personal protective equipment and respiratory protection standards.

Also, when withdrawing the temporary standard, OSHA indicated that the secondary logs under 29 CFR 1910.502(q)(2)(ii) were adopted under alternate provisions and therefore remain in place. It’s unclear if logs of this type might be required, healthcare employers should assess their practices in conjunction with their compliance officers and/or attorneys to determine the correct strategy.

Masking

Masking can relate very specifically to issues of your industry and the risk levels in your industry or communities. While the CDC, OSHA, and other agencies have not always been consistent with their masking requirements or suggestions, OSHA has continued to emphasize the general duty clause to keep employees safe and on analysis of when your employees are at increased risk.

OSHA consistently indicates that risk typically attaches to forward-facing 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 and other requirements. 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 walk-in patient base, compared to those in the accounting department or other administrative areas.

On September 23, 2022, the CDC issued updated masking guidelines for healthcare which included some of the following:

• Make sure that employees and visitors are aware of your COVID protocols which include signage relating to handwashing and similar items.
• Via signage require that anyone who has tested positive for COVID, has been in close contact, or has active symptoms of illness should not enter the facility.
• Continue to optimize indoor air quality.
• The CDC previously withdrew its mask order for public transportation, although it strongly continues to recommend masking in that circumstance.

In August, the CDC also updated its guidance on quarantine, recommending that if a person was exposed to COVID-19 rather than quarantining that person wear a high-quality mask for 10 days and get tested on day five for COVID. If a person tests positive for COVID-19, the CDC recommends that person stays home for at least five days, isolating from others, and then if after five days that person is fever free for a minimum of 24 hours isolation may be ended. The person should wear a high-quality mask through day 10.

The CDC also notes that not all COVID infection is the same and people may respond differently, 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 the healthcare provider.

While a number of media outlets have estimated that United States businesses are currently 90 percent mask optional, it is important to note that while the CDC no longer considers vaccination status while making these assessments, in the healthcare sector, CMS is different. For healthcare providers covered under the CMS regulations relating to COVID-19 vaccination CMS, continues to state that unvaccinated employees are subject to heightened PPE requirements in a healthcare setting, including masking.

Vaccinations

The vaccination issue is state and industry-specific. Federal agencies continue to encourage employers and others to run educational programs for vaccination for COVID, as well as the flu, including applicable booster shots. Vaccination requirements for most non-healthcare industries were rescinded or are no longer applicable.

However, in the healthcare industry, CMS regulations regarding vaccination programs and standards remain in force. In Iowa, the state legislature passed a statute that changed the nature of the information provided to obtain a vaccine exemption. However, as noted in prior a article, CMS has specifically stated that its rules and 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. Religious exemption requests typically require somewhat more information than would be provided for under the state statute and follow the standard Title XII processes for obtaining a religious exemption or accommodation.

Bottom Line

Employer requirements, even when it’s not a pandemic, can change quickly based on circumstances. It is impossible to determine how the upcoming season will affect COVID rules as we wait for new variants and issues. Despite COVID fatigue, employers need to continue to monitor changing rules and update policies as needed.