NOTE: This post has been updated for guidance from the Maryland DOL on paid leave under the Essential Workers Protection Act.
Workplace guidance on COVID-19 keeps shifting at the federal and state level, which poses a challenge for all employers. For Maryland businesses, we thought it might be helpful to summarize where we stand as of early June 2021.
Although Maryland remains in a state of emergency, at this time, the Governor has lifted many of the restrictions that impact the private workplace, such as shutdown orders, most masking requirements, group limitations, travel, etc. This does not mean a return to normal, however, as federal guidance still applies, and more state guidance should be forthcoming shortly. In addition, local jurisdictions, such as Baltimore City, may still have restrictions – like masking while indoors – with which employers must comply.
COVID-19 Workplace Safety Standards. The Biden administration has been promising a COVID-19 Emergency Temporary Standard (ETS) that would be applicable to and mandatory for all workplaces. It was supposed to have been issued by March 15, 2021. The ETS was sent to the White House’s Office of Management and Budget for review in May, which suggested it would be released shortly thereafter. However, the Centers for Disease Control and Prevention then revised its guidance for fully-vaccinated individuals (as discussed in our updated May 14, 2021 blog post), and commentators believe the ETS required revision accordingly, which delayed its release. Nonetheless, we expect that it should be released at some point in the near future.
In the meantime, just after the change in Presidential administration, the Occupational Safety and Health Administration provided stronger guidance for employers and employees on COVID-19 in the workplace, which we discussed in detail in our January 29, 2021 E-lert. OSHA noted that the guidance is not a legal standard or regulation and creates no new legal obligations, but provides recommendations as well as descriptions of existing safety and health standards. OSHA further reminds employers of their obligation under the General Duty clause to provide a safe workplace. It also reminds employers that it has provided more specific guidance for certain industries.
To date, Maryland has not enacted any COVID-19-specific safety standards, but one should be forthcoming. The Essential Workers Protection Act was passed by the Maryland General Assembly this session and took effect on May 30, 2021 (we summarized this new law in our April 15 E-lert). One provision in the law requires the Maryland Secretary of Labor, within 15 days of enactment of the EWPA, to adopt OSHA’s ETS or, if no federal ETS exists, to issue a state ETS that meets or exceeds OSHA’s January 29, 2021 guidance as well as including some additional provisions regarding notification and posting. NEW: With OSHA’s issuance of its ETS specific to healthcare settings on June 10, 2021, we have been informed by the MDOL that they will be adopting that standards and will not be issuing a general standard applicable to all employers.
The practical effect of all of this is that Maryland employers should be reviewing and complying with the January 29, 2021 OSHA guidance pending the issuance of OSHA’s promised ETS (which will likely mimic much of that guidance). Although OSHA describes the guidance as “recommendations,” the reality is that an employer who ignores those recommendations could be found to have failed to comply with its obligation to provide a safe workplace under the General Duty clause.
Vaccinations. As recently confirmed by the Equal Employment Opportunity Commission, employers may require employees to be vaccinated against COVID-19, subject to exemptions for disability or religious needs. However, employers should be careful that such a mandate does not have a disparate impact by race or other protected characteristics, keeping in mind that certain communities may have vaccine reluctance or lack of access to vaccines. We further note that employers imposing a vaccine mandate may find themselves with a staffing shortage, based on employees’ refusal to comply with the mandate.
Employers may encourage employees to get the vaccine and may even incentivize them to do so by offering paid leave (and note that employers with up to 500 employees could receive a tax credit for this leave, as discussed in our April 21, 2021 E-lert), gift cards, or even a cash payment. And if the employer is not administering the vaccine itself, there is no limitation on the amount of the incentive. If the employer is administering the vaccine, then the incentive must be much more limited, as we discussed in our May 28, 2021 E-lert.
Some employers are permitting fully-vaccinated employees to return to the workplace and engage in certain activities – some social, some work-related – while requiring those who are not fully-vaccinated to remain out of the workplace. Note that if an employee is unvaccinated because of a disability or religious need, the employer must provide reasonable accommodations to allow the employee to enjoy equal benefits and privileges of employment, which may include these activities.
Masking. Although the state has lifted the masking requirements for all individuals except in certain circumstances (e.g. on public transportation, while obtaining healthcare services, and in schools), the CDC’s guidance – which is currently adopted by OSHA – is that unvaccinated or partially-vaccinated individuals should continue to mask while indoors and/or in close contact with others, whether indoors or outdoors. Fully-vaccinated individuals no longer need to mask around others.
Employers in Baltimore City, however, must continue to require masking for all employees, regardless of vaccination status, in areas where they are likely to interact with others (including but not limited to shared common areas – like bathrooms, hallways, breakrooms and lobbies) until the mask mandate is lifted.
Some employers may want fully-vaccinated individuals to stop masking, although the individuals may wish to continue to do so. We do not recommend this approach, given the rapidly changing situation, the evolving understanding of COVID-19 and the vaccine’s efficacy against variants, and the fact that some fully-vaccinated individuals may still have underlying health conditions, among other things. This type of mandate could lead employees to complain that the employer is creating an unsafe environment – which, even if the employer could disprove, could nonetheless cause the employer to incur costs and challenges in defending against such a claim or complaint to OSHA.
Social Distancing. Employees who are not fully-vaccinated should continue to observe social distancing protocols, where possible.
Quarantines. Employees who are fully vaccinated need not quarantine following exposure to COVID-19. Exposed, vaccinated employees should still monitor for symptoms. Those who are not vaccinated or are only partially vaccinated must still quarantine for at least 7 days, if testing is done after the 5th day following exposure, and 14 days without testing. Critical infrastructure workers, however, may continue to work following exposure, absent symptoms and in accordance with OSHA’s guidance.
Screening. Many employers have implemented daily or regular screening, such as questionnaires, temperature checks, and testing. These employers can choose to excuse fully-vaccinated employees from such screening, while continuing to screen those who are not fully-vaccinated.
Travel. The State does not currently have any travel restrictions, although it refers to CDC guidance that individuals refrain from travel until fully vaccinated. Thus, employers should continue to try to minimize any required travel for unvaccinated employees.
Employers can allow fully-vaccinated employees to resume business travel, both domestic and international. Domestic travelers need not test before or after travel, while international travelers must be tested before returning to the U.S., with testing recommended 3-5 days following return. Both domestic and international travelers need not quarantine following travel. Be aware that there may be additional testing and quarantine requirements imposed by the travel destination, however.
Moreover, employers should be thoughtful in responding to employee concerns about required travel – particularly for older employees or those with underlying health conditions, even if they have been fully vaccinated.
Paid Leave. The recently-enacted EWPA mentioned above contains a provision that requires essential employers in Maryland to provide their essential workers with paid public health emergency leave, in addition to any existing paid leave, but only if there is federal or state funding for such leave. This raised the question as to whether essential employers who are covered by the voluntary extension to the Families First Coronavirus Response Act were required to provide such leave to their essential workers. We obtained confirmation from the Maryland Commissioner of Labor and Industry that the State does not consider the FFCRA tax credits to be funding for purposes of triggering the paid leave requirement in the current COVID-19 pandemic.
This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.