This write-up follows the Returning to the Workplace: Administrative and Strategic Considerations (Phase 1) and Guide to Returning to the Workplace: Organizational Effectiveness (Phase 2) that were released in the summer of 2020.

As nearly most COVID-19 safety restrictions have been eased, we are preparing to return to a new world living with COVID-19. On Wednesday, March 10, the Hawaii Department of Health announced that it is transitioning from daily to weekly COVID-19 data reporting every Wednesday. Hawaii’s indoor mask mandate will sunset along with the state’s current emergency proclamation for the COVID-19 pandemic at 11:59 p.m., March 25.

There are many factors to review and consider as workplaces adopt hybrid policies for their employees and reconsider their workplace safety policies. Accordingly, employers must review what measures they will keep in place now that COVID-19 restrictions are eliminated.

As you consider your hybrid and/or workplace safety policies, it’s important to develop and communicate your company’s policies to outline revised policies and standard operating procedures as well as expectations for how the workplace has changed due to the COVID-19 pandemic.

Be flexible, nimble, and prepared. Be sure to communicate with your employees the who, what, where, when, and why of revised or new policies.

The following are policies that have been standard components of COVID-19 workplace policies that are now worthwhile to review and reconsider.

Vaccine & Boosters
Officials have long said a vaccine and booster are the best ways to protect against COVID-19.

For workers that are not vaccinated, can an employer mandate vaccination? Under EEO laws, employers can require employees who enter the workplace to get vaccinated. But businesses have to offer reasonable accommodations to employees who don’t get the vaccine because of disabilities, religious beliefs, or pregnancies.

How will you respond if/when health officials recommend a booster shot? Many companies offered incentives (e.g., Paid Time Off/leave, an incentive bonus) to encourage employees getting vaccinated and/or boosted. Will you do the same? 

Self-Test, Self-Quarantine & Isolation Policies
When was the last time you reviewed and updated your self-test, self-quarantine & isolation policies?

In January 2022, the Centers for Disease Control and Prevention (CDC) updated its COVID-19 quarantine and isolation recommendations for healthcare and non-healthcare settings. The Hawaii State Department of Health shortly adopted these guidelines for self-testing, self-quarantine, and isolation, as outlined in its COVID-19 Interim Return to Work Guidance.

 In addition to reviewing existing (or former) protocols you implemented, are any worth keeping or revisiting? Some workplaces may still require some COVID-19 restrictions and policies in place. It’s important to take stock of what rules and policies may govern your workplace.

Additionally, employers are encouraged to align their policies with the CDC’s and State Department of Health’s COVID-19 guidance and guidelines for ease of understanding and uniform application for your employees.

Return to Workplace Protocols
For much of the past two years, many employers instituted a myriad of safety protocols including temperature check screenings and health self-declarations for those employees that returned to the workplace. Again, consider if these protocols still make sense for your company. Given the nature of some businesses, it may make sense for you to keep safety protocols in place.

Furthermore, spend time reviewing your policies and update them as necessary. For example, did you implement a temporary remote work and flexible work schedule? Update these policies and communicate any changes to your employees. Be sure to explain the who, what, where, when, and why.

Face Coverings / Masks
While the CDC revised its guidelines and recommendations for who are encouraged to wear masks indoors, Hawaii’s indoor mask mandate will soon end on March 25. Until the order sunsets, employers should continue to require the wearing of face coverings/masks indoors. Additionally, on Thursday, March 10, the CDC announced that the federal Transportation Security Administration’s mask mandate – requiring all travelers to mask up on airplanes, trains, buses and in airports and train stations – will be extended through April 18.

What will your organization do after the state’s indoor mask mandate is lifted on March 26? What will you do? Will you keep in place a mask mandate just for employees? Or will it be applicable to all visitors, including customers?

Take a moment to determine if it will make sense to keep mask protocols in place. Encourage continued mask wearing for employees who are immunocompromised or at high risk for severe illness, or if employees live with or have social contact with someone at high risk for severe illness, including young children. In addition to mask wearing, encourage high risk employees to test at home for infection before reporting to work. Be sure to communicate these policies with your employees.

In-the-Workplace Protocols
Social distancing, the closure of areas of congregation (e.g., lunchrooms, break rooms, cafeterias), and virtual-only meetings became the norm for much of the pandemic. Do these policies still make sense? 

Consider what makes sense for your company.

If most of your workforce is vaccinated, it may be safe under current conditions and guidance to consider loosening safety protocols such as social distancing and reopening of areas of congregation. The CDC still recommends that those unvaccinated stay at least 6 feet away from other people and wear a mask in indoor settings.  For unvaccinated employees, share the CDC offers tips to help build vaccine confidence among your employees. See CDC’s Building Confidence in COVID-19 Vaccines webpage for more information.

While most employers increased the frequency of cleaning and sanitation during the height of COVID-19, it may be prudent to continue periodic and routine cleaning and sanitation. Continue to encourage healthy behaviors and practices including the placement of hand sanitizers throughout the office and making sanitation items readily available.

The CDC offers step-by-step advice to help prevent the spread of COVID-19 if you are sick, including staying home (except to get medical care), getting tested, isolation, seeing a doctor, and wearing a mask. See CDC’s What to Do If You Are Sick webpage for more information.

As a reminder, employers should always strive to keep the workplace as safe as possible for its employees. The Hawaii Occupational Safety and Health Law (HRS Ch. 396-6) requires employers to provide a work environment that is “free from recognized hazards that are causing or likely to cause death or serious physical harms to employees.” Additionally, although the Occupational Safety and Health Administration (OSHA) withdrew its Emergency Temporary Standard (for the vaccination of large employers’ workforces), OSHA remains committed to addressing employers’ failure to protect workers from COVID-19 by issuing violations of the General Duty Clause from the OSHA Act of 1970 (29 U.S.C. § 654). The General Duty Clause requires that, in addition to compliance with hazard-specific standards, all employers provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm."

On October 12, 2021, OSHA issued a serious violation and penalty of $9,557 to Amston Supply Inc., a Wisconsin company, under the General Duty Clause, and found that the employer failed to implement or follow COVID-related safety policies, by allowing workers to congregate closely, without face coverings, in several work areas.  Accordingly, you should not only create coronavirus-related safety policies for the workplace, but also ensure they are being enforced and followed by everyone in the workplace. 

See OSHA resources:

• Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
• Frequently Asked Questions

Preventing Employment-Related EEOC/HCRC Charges and Lawsuits
Since the start of the pandemic, there have been thousands of discrimination claims filed with the U.S. Equal Employment Opportunity Commission (EEOC), with the majority related to disability bias, as well as widespread employment-related lawsuits nationwide due to COVID-19. 

An EEOC or Hawaii Civil Rights Commission (HCRC) charge is the first step for workers bringing discrimination lawsuits. Some of the most common lawsuits filed are related to leave or employee discrimination, such as employment discrimination (particularly ADA, religion, and Title VII of the Civil Rights Act, as amended, and HCRC complaints under HRS Ch. 368 as well as HRS Ch. 378 - Employment Practices), remote work conflicts, and leave conflicts. Because it’s expected that pandemic-related EEOC or HCRC charges and lawsuits will increase, companies need to do their due diligence, keep proper documentation and comply with Equal Employment Opportunity “EEO” laws and Hawaii Employment Discrimination Laws, including offering reasonable accommodations. If you discipline an employee after that employee raised a concern with the workplace health and safety plans, you are potentially opening your company up to a retaliation or whistleblower claim. A comprehensive accommodation policy could help increase the likelihood of success if you must defend a lawsuit or an EEOC or HCRC charge.

Accordingly, consult with legal counsel regarding legal and public health requirements to include in your company’s return-to-work plan.