Pennsylvania Mitigation Orders Lifted, Employer Responsibilities Remain

Pennsylvania recently announced that as of May 31, 2021 it would lift all of its COVID-19 Mitigation Orders, except those regarding face coverings.

The end of these and similar orders across the country are likely an initial relief to businesses who have been limited by occupancy and other requirements for over a year. However, before employers make any changes when orders are lifted, they should first understand their continuing obligations to mitigate the risk of COVID-19 in the workplace.

All employers owe employees a “general duty of care” under the Occupational Safety and Health Administration (OSHA) to provide employees a safe workplace free from harm. In meeting this general duty of care, employers must follow OSHA rules and should abide by OSHA guidance. OSHA guidance also often includes following the Center for Disease Control (CDC) and other agency reccomendations, especially concerning COVID-19.

Employers who fail, or are alleged to have failed, to provide this general duty of care face OSHA investigations, penalties, mandated workplace procedures and postings, and damages for retaliation. This is particularly true under the new administration’s focus on enforcement and compliance.

Additionally, employees have filed an increased number of private actions, including claims of negligence against employers. Here, often employees allege they, or a family member, have become ill or injured due to unsafe or otherwise insufficient workplace conditions. Employers should also be mindful of the many claims that may exist related to workplace health and safety, such as accommodations, discrimination and harassment, whistleblower protections, and leave obligation.

Employers can help protect themselves, their employees, and their business by following OSHA’s Safe Work guidance which includes the following:

• Eliminating hazards by separating and sending home infected or potentially infected people from the workplace;
• Implementing physical distancing in all communal work areas, including implementing remote work and telework;
• Installing barriers where physical distancing cannot be maintained;
• Suppressing the spread of the hazard using face coverings;
• Improving ventilation;
• Using applicable equipment to protect workers from exposure;
• Providing the supplies necessary for good hygiene practices; and
• Performing routine cleaning and disinfection.

OSHA also recommends following CDC guidance for businesses and employers which similarly includes:

• Communicating supportive workplace polices clearly, frequently, and via multiple methods;
• Establishing policies and practices for social distancing, including telework and flexible scheduling;
• Conducting daily in-person or virtual health checks;
• Ensuring all employees wear masks in accordance with CDC and OSHA guidance;
• Delaying travel;
• Minimizing risk to employees when planning meetings and gatherings;
• Actively encouraging sick employees to stay home, including implementing flexible sick leave and supportive policies and practices;
• Acting if an employee is suspected or confirmed to have COVID-19;
• Protecting employees at higher risk for severe illness through supportive policies and practices; and
• Performing routine cleaning and disinfection.

While all businesses will want to continue to encourage and enforce self-monitoring, staying home when sick, utilizing face coverings, social distancing, and hand washing, specific steps for industries will vary. For example, retailers may want to continue using plexiglass dividers, directional signs, and occupancy limits to assist with distancing, whereas offices may want to consider continuing telework and remote meetings to assist with distancing.

All employers will also need to continue to enforce face covering requirements. The Pennsylvania face covering Orders will continue in effect until at least 70% of the population are fully vaccinated. Under both the Order and CDC guidance, face coverings are  required indoors in the workplace for all persons, regardless of vaccination status.

Regardless of industry, event, or which orders are lifted, it is important for employers to continue to plan, implement, and enforce safety in the workplace to meet their duty of care and protect themselves, their employees, and their business.

Employers with questions related to COVID-19 and the workplace following the lifting of Pennsylvania Mitigation Orders or other questions related to employment law should contact Leah Sell at 412.261.1600 or lsell@leechtishman.com.