June 25, 2021

COVID-19 Questions Continue, Even After Easing of Government Mandates

by Marie-Joëlle C. Khouzam, Esq., Bricker & Eckler LLP

While about two-thirds of the states and the Centers for Disease Control have recently eased COVID-19 restrictions for fully vaccinated personsi, many individuals and businesses continue to want to ensure the safest possible environment for themselves and those with whom they interact. To that end, most legislatures that have lifted restrictions nonetheless allow private businesses to set their own standards as to what safety precautions to continue, and for how long.ii

The most common requests by businesses wishing to extend safety protocols for the well-being of their employees and customers are that employees and customers continue to wear masks and use hand sanitizer. Anecdotally, even establishments that have continued these requests of their customers have scaled back considerably on the additional staff that only recently cleaned shopping carts and the supplies of hand sanitizer or wipes available at the entrance.

Why might a business extend its safety protocols if it’s not required to? First, employers are subject to the Occupational Safety and Health Act’s General Duty Clause,iii which requires them to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. This broad catch-all provision does not specify to employers how to ensure this, and can be a powerful weapon of the Department of Labor. OSHA published general COVID guidance for Retail Workers and Employers in Critical and High Customer-Volume Environments, noting that this guidance did not create new obligations but was intended to guide various aspects of a retail operation during COVID times. These best practices ranged from disinfecting surfaces to spacing customers in check-out lines, and will continue to have application – and benefits -- for many businesses. They are also good practices as flu season rolls back around.iv

In addition to OSHA oversight, the U.S. Equal Employment Opportunity Commission released updated guidance on May 28, expressly authorizing businesses to ask for proof of vaccination status from employees, with the caveat that employers must maintain this information as confidential in order to comply with various employment laws.v And, contrary to publicized claims that it violates federal health privacy laws to ask customers about vaccine status, businesses that are not health care institutions or health-related entities are not subject to HIPAA if they ask to see a vaccine card as a condition of entering the premises. That said, businesses cannot discriminate against customers on the basis of disabilities, which could include a disability that prevents the person from being vaccinated.vi

Beyond regulatory oversight, another aspect of voluntarily extending protocols may come from an employer’s desire to limit the spread of contagion from asymptomatic co-workers or customers, especially if the employer has reason to know an employee (or an employee’s family member) may be immunocompromised. At their core, the mask mandates and other best practices were intended to encourage each person to help protect others, especially the unvaccinated and those more susceptible to health concerns. Even vaccinated persons who become exposed, most likely to a person who is unaware they have COVID, can still contract COVID-19 and even pass it on to an elderly family member or one with immune or chronic health issues, albeit at a lower rate than to unvaccinated persons. “…No vaccine offers 100% protection against illness, yet it does give you a better chance to fight off the infectious consequences of being exposed to the SARS-CoV2 virus.”vii

On June 7, the CDC issued a press release on the effectiveness of vaccines in fully vaccinated people. Its study concluded that Pfizer-BioNTech’s and Moderna’s COVID-19 vaccines, authorized by the Food and Drug Administration on an emergency use basis, reduced the risk of infection by 91 percent.viii

For the foreseeable future, businesses generally remain free to take steps to protect their employees and customers, so long as their policies are cognizant of any local obligations in the jurisdictions where they conduct operations and of disabilities laws that affect places of public accommodation.

i. A person is considered fully vaccinated 14 days past the last COVID-19 vaccination.
ii. The governors of Texas and Montana have issued executive orders prohibiting local laws from requiring the continued use of masks, although businesses may continue to require employees or customers to do so.
iii. 29 U.S.C. § 654, Section 5(a)(1)
iv. “[W]e found a significant decrease in cases of influenza, enterovirus, and all-cause pneumonia during the COVID-19 pandemic. Wearing masks, hand hygiene, and social distancing may contribute not only to the prevention of COVID-19 but also to the decline of other respiratory infectious diseases.” Eysenbach, G., et al., “Impact of Wearing Masks, Hand Hygiene, and Social Distancing on Influenza, Enterovirus, and All-Cause Pneumonia During the Coronavirus Pandemic: Retrospective National Epidemiological Surveillance Study”, Journal of Medical Internet Research, August 2020 (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7471891/). See also “Social Distancing and Wearing Masks May Be Keeping Us Safe From the Flu, Too, the CDC Says”, Seaver, M., Real Simple, January 8, 2021 (https://www.realsimple.com/health/preventative-health/cold-flu-allergies/flu-cases-decline-during-coronavirus-cdc)
v. See May 28, 2021 updates to EEOC Guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”
vi. 28 C.F.R. Part 36.
vii. Lyssette Cardona, MD quoted in “Can Vaccinated People Transmit COVID-19 to Others?”, Cleveland Clinic Health Essentials, June 14, 2021 (https://health.clevelandclinic.org/can-vaccinated-people-transmit-covid-19-to-others/)
viii. https://www.cdc.gov/media/releases/2021/p0607-mrna-reduce-risks.html

Why might a business extend its safety protocols if it’s not required to? First, employers are subject to the Occupational Safety and Health Act’s General Duty Clause, which requires them to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.