When offices have long been ‘open’, masks have long been ditched, and social distancing seems strange to have even existed, it seems odd to think that that some Covd-19 ‘emergency measures’ are only just ending.
But this is exactly the case in – for example – California, which only ended its state-wide ‘state of emergency’ on 1st March. Meanwhile, the federal state of emergency for Covid-19 only ended last week (May 11th).
On the one hand the ending of these states of emergency are largely symbolic – waving a not-so fond farewell to some of the most invasive announcements ever applied to Americans.
In California Gov. Gavin Newsom, for example, used his authority under the emergency declaration to issue 596 orders. While some were small – like delaying deadlines for people to fill in their tax submissions – some were very big indeed, such as issuing state-wide stay at home orders.
However, while the emergency might be over [it was only on May 5th that the World Health Organization declared that COVID-19 is no longer a “public health emergency of international concern,”] the war is still ongoing, and employers across the country are being warned not to just think Covid-19 has disappeared.
That’s because it hasn’t.
California actually tops the list for having the highest total number of Covid 19 cases recorded – at more than 12 million (the next highest is Texas, at nearly 8.5 million).
Not only this though, across America there are still more than 72,000 cases of Covid 19 every week. This translates to 4,000 hospitalizations. Most recent data (to May 15th) shows 840 weekly deaths still, while as of March 10th 2023, the accumulated (total) death rate from Covid-19 in the state of New York reached 397 per 100,000 people (in Arizona it was 455).
The problem for employers is that because the official state of emergency is ending, it means, for instance, that the US Centers for Disease Control and Prevention (CDC) will stop tracking COVID-19 community levels. It will now only act on hospital data. After May 11 (ie from now onwards), PCR labs will no longer required to report negative Covid-19 test results.
It’s a problem, because some argue measures like this will actually require employers to be even more vigilant of Covid-19 than before, with any ‘outbreaks’ now most likely to be observed by employers.
According to employment Attorney Corinne Spencer, partner at Pearlman, Brown & Wax who represents and counsels employers in litigation, risk assessment, policy preparation for California employers, employers in her state will still be expected to meet prevention and containment requirements until at least February 2025, and possibly as far into the future as 2026 – and they may not actually be thoroughly aware of this.
Speaking to TLNT she said: “The big surprise for many employers is that they will still need to apply a Covid-19 prevention program to their workplace for at least the immediate future.”
She adds: “It’s not business as usual and Covid-19 is not over. While physical distancing and masks may have been dropped, and employees don’t have to be vaccinated, employers will still need to follow a containment programme of some sort if an outbreak occurs – which is defined at being more than three people.”
The need for ‘safe’ workplaces still
“Employers still need to provide what they define as a ‘safe workplace’,” Spencer adds.
She says: “While the window is closing for employees to say they don’t want to come to the office for fear of catching Covid-19, employers still need to demonstrate that the office is safe, and that they can accommodate some people’s reservations.” She adds: “It’s a case of being reasonable with staff still.” She continues: “Employers need to be able to prove to people that while staff may well be scared of catching Covid-19, they are managing that risk as best they can.”
According to Spencer, her “best guess” is that over time, a Covid-19 prevention program will be folded into most organizations’ general illness prevention policies.
But she says that if there is an outbreak at-work, the likes of Cal/OSHA (the agency of the Government of California established by the California Occupational Safety & Health Act), will require organizations to prove that they have had the sorts of policies in place that will have reduced the likelihood of it happening in the first place.
“The key,” she says is being in-tune with their responsibilities still, and not acting like things are over now.”
Sick pay differences
There are some elements employers will certainly be pleased with now that the state of emergency is over.
In California, San Francisco’s Public Health Emergency Leave (PHEL) offered employees (for certain San Francisco employers), up to 80 hours’ paid leave for Covid-related reasons. Since March 1st, employees will no longer be able to claim for this. Employers are also no longer obliged to pay those who may have been in contact with someone with Covid-19 to not come into the office (a form of exclusion pay).
However, Spencer also says that different bodies still govern areas such as paid sick leave, so HRDs will need to check what sick leave staff are entitled to if they get Covid-19.
She adds: “Employees who feel they’ve contracted Covid-19 through work can also apply for compensation under the California Workers’ Compensation System – so again, this is another reason why employers can’t forget about having, and applying, a proper Covid-19 prevention program,” she says.
It all points to a situation where societal rules around Covid-19 might well have been relaxed, but policies for safety in the workplace still need applying.
Says Spencer: “Employers across America need to be aware that their responsibilities remain, so that they face no nasty surprises.”
Covid-19: The facts:
- More than 1.1 million Covid-19 related deaths have been recorded in America since March 2020 – more than any other country in absolute numbers
- US deaths due to Covid-19 correlate to 341 deaths per 100,000 people – higher than the likes of France and Germany
- In the winter of 2022, with the arrival of the Omicron variant, there were 5.5 million cases recorded in just a single week.
- Today there are around 77,000 new cases per week
- In 2022, the Kaiser Family Foundation (KFF), reported that Black people in the US were “twice as likely” to die from COVID-19 than their white counterparts of similar ages.
