Reminder: OSHA 300A Logs Must Be Posted by February 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.

10 Workplace Predictions for 2026: Key Trends for Employers to Track

We won’t pretend to have a crystal ball when it comes to what will happen in the labor and employment legal landscape in the new year, especially given the nature of modern-day politics. But despite the uncertainty, Fisher & Phillips’ developed their best predictions to help you plan for 2026. You can read the entire FP Workplace Law 2026 Forecast here, or you can dive into this Insight for the top 10 predictions pulled from our report.

Government Relations: DC Will Be Full Speed Ahead Once Again

The second Trump administration has been operating at a breakneck pace and there are no signs of that changing in 2026, especially with control of Congress on the line. The White House is aware that its agenda would face additional roadblocks if Republicans were to lose control of either the House or the Senate, so there will be concerted effort to move forward with the president’s priorities as soon as possible in the new year. This includes confirming judges to benches across the country (and potentially the Supreme Court if Justices Thomas or Alito retires), continued deportation efforts (especially given ICE’s boosted budget), and reducing the size of the federal government.

Immigration: An H-1B Lottery Overhaul is Coming

A growing series of pressures on the H-1B system in 2025 already brought heightened investigations, new fee requirements, intensified employer scrutiny, and a sweeping new social media vetting requirement for H-1B workers and their families.

In 2026, it is predicted that DHS will replace the current random H-1B cap lottery with a weighted selection system that gives higher-wage positions better odds of being chosen, potentially as soon as the March 2026 cap season. Even if litigation slows implementation this coming year, it’s likely to take effect during this administration. The change will heavily favor employers able to offer Level III–IV wages, making it harder for startups, non-profits, and entry-level roles to secure visas. This will force many organizations to rethink compensation strategies and diversify their global talent pipelines.

Artificial Intelligence: Bias Audits Will Become a Must-Have for Employers

Despite a recent executive order targeting “onerous” state AI laws, employers will continue to face a growing patchwork of state and local laws focused on combating AI bias in hiring and the workplace. And an AI bias audit is one of the most effective ways to identify and mitigate risk given the evolving state of AI-related laws springing up around the country. Indeed, plaintiffs’ attorneys are already using the absence of an audit as evidence of negligence or discriminatory design. 

Wage and Hour/Pay Equity: State Enforcement to Step Up

States with robust wage and hour and wage payment laws (such as CA, IL, NJ, NY, WA) will continue to aggressively enforce their laws during a period when DOL enforcement activities may decline (in part, due to a reduction in the number of investigators). On the other hand, expect federal enforcement to continue to take a business-friendly approach, and expand the multiple compliance assistance programs it rolled out in 2025.

Fisher & Phillip’s also anticipates a noticeable uptick in pay equity litigation, fueled by well-publicized gender pay settlements and pro-plaintiff decisions in states with robust pay equity statutes. Use the F&P Pay Equity and Transparency Map to track state developments on pay discrimination laws.

Workplace Safety: New Leaders Promise a Business-Friendly Approach

New leadership will mean a new day for employers. Now that David Keeling is in place as the new head of OSHA and Wayne Palmer has been confirmed to lead MSHA, it is expected that efforts to increase outreach to industry will begin. For example, F&P predicts OSHA will issue few, if any, press releases after an employer is cited for safety violations. We also expect fewer regulations to be proposed or promulgated.

Labor Relations: The NLRB Will Begin Dismantling the Biden-Era Board’s Legacy

The Board should finally return to a legal quorum by early 2026. It will likely seek to overturn several significant Biden-era cases in the months thereafter, including rulings that addressed restrictions on workplace conduct rules, remedies available for unfair labor practices, and mandatory captive audience meetings, among other precedent-setting decisions. In response, unions are expected to abandon their reliance on the NLRB. This could mean an increase in labor grievances in union shops. Unions may also revisit recognitional picketing to pressure employers into recognizing them outside the election process.

Sports: Continued Battle Over Student-Athlete “Employee” Status

Both the DOL and NLRB were directed by President Donald Trump to clarify the status of student-athletes as part of a July executive order. While it’s unlikely the Trump administration will be willing to upend the current college sports model by deeming college athletes as employees who have collective bargaining rights and overtime protections, guidance from these agencies on the issue has yet to materialize.

Privacy and Cyber: Wiretapping Litigation Wave Will Keep Churning

In addition to continued proliferation of privacy laws at the state level, we expect the plaintiffs’ bar to continue the wave of wiretapping and related claims against businesses relating to the use of tracking technology on company websites.

While the statutes being used as ammunition in these lawsuits predate the internet, courts are allowing them to move forward across the country, exposing businesses to expensive class action litigation. This trend began primarily in California, but it has already expanded to other states. It is anticipated that it will continue to do so, unless or until state legislatures or courts directly address the application of wiretapping and other long-standing laws (that were intended for other purposes) to the use of tracking technology on websites.

International: Expanded Protections for Non-Traditional Workers

Multinational businesses should prepare for upcoming regulatory changes related to non-traditional workers, including freelancers and gig workers. For example:

• EU member states will need to adopt a new directive before the end of 2026 that seeks to curb worker misclassification, ensure algorithm transparency, and enhance working conditions and data protection for individuals engaged in platform work, including freelance, on-demand, and gig work.
• The first-ever law protecting freelancers and independent contractors in Japan came into effect in 2024. The law already requires businesses that do work in the country to review their workplace practices and adjust as necessary, and we expect regulations to be expanded and refined in 2026.
• Companies doing business in Mexico should also expect the government to advance and strengthen regulations for digital platform workers in the year ahead.

Construction: AI Claims, Immigration Enforcement to Increase

As the adoption of drones and AI-driven tools become commonplace, issues around privacy, data protection, off-the-clock work, and workplace surveillance will require contractors to develop clearer policies and disclosures. Additionally, we expect wage-theft enforcement actions to expand in more states, leading to more audits and increasing the importance of compliance and record-keeping.

Increased I-9 audits and ongoing jobsite raids will also require employers to continue to be vigilant about verification and compliance. Fisher Phillips offers a Rapid Response Team for DHS Raids to support employers when an workplace enforcement action occurs at your business.

 

Practical Summer Safety Tips for Employers as OSHA Takes Next Steps for National Rule

OSHA’s long-awaited heat illness rule could be inching closer to reality, with a public hearing that could determine its fate now scheduled for June 16. While many predicted the Trump administration would stall or shelve the proposal entirely, political pressure from labor unions – and growing business support for a consistent federal standard – has kept it alive. Still, it remains uncertain whether the rule gets finalized, and is even possible we’ll see a scaled-back version to take shape in the coming months. No matter what happens in Washington, D.C., however, one thing is clear: employers can’t afford to wait to address heat risks in the workplace. Here’s a practical guide to protect your workforce this summer – whether or not a new federal standard is finalized.

Background and Update on National Heat Safety Rule

Here’s an update as to where things stand on the regulatory side of things.

• The NEP Remains in Full Force – OSHA launched a National Emphasis Program (NEP) on heat in 2022 that remains active. It was supposed to expire in April but was extended until April 2026 by the Biden-era OSHA shortly before the change in administration. The NEP drives the agency to conduct inspections in industries with high heat exposure risk, including construction, agriculture, warehousing, and food processing. The program gives inspectors the green light to initiate heat-focused inspections on high-temperature days, even without a formal complaint or incident. 
• Proposed Heat Rule is Still Alive – But May Be Watered Down – Last year, the Biden-era OSHA took things one big step forward by proposing a federal rule that would require all employers to take specific actions when the heat index hits 80°F and implement stricter measures at 90°F, including access to water and shaded rest areas, acclimatization plans for new and returning workers, training for both employees and supervisors, and emergency response procedures. 
• Trump’s OSHA Is Still Moving Forward – Despite speculation that the Trump administration would immediately scrap the rule, political dynamics have changed the outlook. Strong union support, especially from the Teamsters, and growing business demand for regulatory consistency have kept the rulemaking process alive. A new DOL leader, Labor Secretary Lori Chavez-DeRemer, has signaled willingness to engage both sides on the issue, and David Keeling, the administration’s nominee to head OSHA, is expected to continue moving the proposal forward – albeit with potential modifications. The final version may shift toward a performance-based standard, giving employers more flexibility in how they meet safety goals depending on their industry.
• All Eyes on June 16th – An upcoming public hearing on June 16 will be a key milestone. Stakeholders from labor and industry will have the opportunity to weigh in before OSHA finalizes any version of the rule. We’ll have a better sense for the future of the rule after that date.
• States Still Have a Say – Even if OSHA drops or waters down its heat safety rule, some states have their own heat-related rules in place requiring employers to take certain affirmative steps to protect workers. Check with your safety counsel to determine what standards are effective in your local area.

7 Practical Steps to Protect Workers from Summer Heat

Regardless of what rules govern your workplace, here are seven steps you can take to best protect your workers as temperatures rise across the country.

1. Monitor the Heat Index – Not Just the Temperature

The heat index (temperature + humidity) is a better indicator of risk than temperature alone. Use free apps or local weather services to track conditions at your worksites.

• Start precautions around 80°F heat index
• Increase protections at 90°F and above

2. Provide Ample Water and Easy Access to It

Hydration is your first line of defense.

• Ensure cool water is available within easy reach
• Encourage drinking water every 15 to 20 minutes
• Don’t rely on workers to request breaks – make hydration routine

3. Schedule Smart – And Be Flexible

Plan the most strenuous tasks for early mornings or cooler parts of the day.

• Rotate workers to reduce prolonged exposure
• Allow for longer or more frequent breaks as heat increases
• Use fans, shaded areas, or cooled rest stations

4. Create a Heat Illness Prevention Plan

Don’t rely on chance to ensure that workers are best protected. Develop a plan in writing and review it with teams before summer peaks. Your plan should cover:

• Identifying symptoms of heat illness
• Response protocols and emergency procedures
• Training and acclimatization policies
• Indoor and outdoor heat risks

5. Implement Acclimatization for New and Returning Workers

The risk of heat illness is highest during the first few days on the job.

• Ease in new workers gradually over five to seven days
• Start with lighter tasks and increase workload over time
• Pair new workers with trained supervisors for close monitoring

6. Train Supervisors to Recognize Red Flags

Train supervisors in emergency response procedures, and empower them to act quickly. Make sure frontline leaders can spot:

• Early signs: dizziness, fatigue, heavy sweating
• Urgent signs: confusion, fainting, hot dry skin

7. Document Everything

With OSHA’s heat emphasis program still active, enforcement will continue even without a final rule.

• Keep logs of training, safety meetings, complaints, and response steps
• Document environmental monitoring and heat-related incidents
• Update written policies and tailor them to your workplace

No Slowing Down: Employers’ Recap of the Trump Administration’s First 50 Days

Courtesy of Fisher Phillips

While new presidents are typically judged based on their actions in their first 100 days, the current Trump administration has moved at such a rapid speed that we think another recap is needed at the halfway point. Here’s your employer cheat sheet on Trump’s first 50 days.

Immigration

• Trump signed 10 immigration orders on day one (Jan. 20). These executive orders, among other things, declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy, terminated the asylum related mobile app, and designated Mexican criminal cartels as terrorist organizations. Read more here. Trump also tried to end automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
• DOJ announced an aggressive immigration stance (Feb. 5). According to a memo from Attorney General Pam Bondi, the Department of Justice will use “all available criminal statutes to combat the flood of illegal immigration . . . and to support the DHS’s immigration and removal initiatives.” Read more here.
• DHS shortened the duration of Haiti’s TPS (Feb. 20). Department of Homeland Security (DHS) Secretary Kristi Noem scaled back a previous decision made by Biden-era DHS officials that had extended Temporary Protected Status (TPS) for Haitian nationals who are in the United States. As a result, the TPS designation period for Haitian nationals will end on August 3 (rather than February 3, 2026).
• DHS unveiled plans for expanded alien registration (March 7). A new DHS rule, which is set to take effect on April 11, significantly expands foreign national registration enforcement by requiring certain noncitizens to register with the government, provide biometric data, and carry proof of registration. This new enforcement push is expected to impact 3.2 million foreign nationals. Read more here.
• Anything else? The Trump administration has been carrying out its plans for mass deportations and widescale enforcement activities, including workplace raids. Read more here. Changes to nation’s immigration policy have a particularly big impact on the high-tech sector, which has long been reliant on foreign professional skilled workers.

DEI and Equal Opportunity Compliance

• Trump issued a far-reaching order against “gender ideology” (Jan. 20). The executive order requires the federal government to recognize only two biological sexes (male and female, as determined at conception) and removes the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. Read more about Trump’s gender ideology order here.
• Trump issued a sweeping anti-DEI order (Jan. 21). The same order that dismantled key affirmative action standards for federal contractors also barred OFCCP from allowing or encouraging DEI programs and directed federal agencies to combat “illegal” corporate DEI programs in the private sector. Read more about the order here (federal contractors) and here (private sector) – and read below for its current (court-halted) status.
• Trump fired two Democrat members of the EEOC (Jan. 27). The unprecedented move enabled Trump to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
• Group of plaintiffs sued Trump and his administration (Feb. 3). Chief diversity officers, professors, a restaurant group, and the city of Baltimore filed a complaint in a Maryland federal court, claiming that Trump’s Jan. 21 anti-DEI order is unconstitutional.
• States started to push back (Feb. 13). Sixteen Democratic state attorneys general issued joint guidance reaffirming their position that workplace DEI remains legal and important to the modern workplace.
• Federal judge temporarily blocked Trump’s order (Feb. 21). The district court agreed with the plaintiffs who filed the Feb. 3 complaint that certain parts of the order are unconstitutional, and that they were ultimately likely to succeed on the merits of their claims. The court halted enforcement of the order while the lawsuit plays out in court.
  

Affirmative Action and Federal Contract Compliance

• Trump dismantled key affirmative action standards (Jan. 21). Trump revoked a 1965 executive order that required federal contractors to engage in race and gender affirmative action – and directed the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease enforcing it. Read more here.
• Labor Department follows suit (Jan. 24). Acting Secretary of Labor Vince Micone ordered all OFCCP employees to cease and desist any and all investigative and enforcement activity under the revoked 1965 executive order. Read more here.
  

Labor Relations

• Trump summarily dismissed two key NLRB figures (Jan. 27). While the dismissal of National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo was widely anticipated, the unprecedented firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond.
• Trump appointed William Cowen as NLRB Acting General Counsel (Feb. 3).
• Wilcox launched a legal challenge to her termination (Feb. 5).
• Cowen signaled a new policy direction (Feb. 14). The NLRB’s Acting GC rescinded more than a dozen policies endorsed by previous leadership, including positions on the legality of non-competition agreements and stay-or-pay provisions, whether college athletes should be considered employees, and more.
• Anything else? These recent shakeups have created compliance confusion for some employers. Here’s what employers need to know about the current state of the NLRB – but stay tuned, because a federal judge reinstated Wilcox on March 6. While the Board can resume certain activities with a three-member quorum back in play, the Trump administration immediately appealed this decision, and this matter seems destined for a date at the Supreme Court for a final resolution.

Department of Labor + Workplace Safety

• Trump nominated new OSHA and MSHA leaders (Feb. 12). Trump recently nominated David Keeling, a workplace safety veteran with experience at UPS and Amazon, to lead Occupational Safety and Health Administration, and Wayne Palmer, a former executive for an industrial minerals trade association, to take the helm at the Mine Safety and Health Administration.
• The Senate confirmed Lori Chavez-DeRemer to lead the DOL (March 10). Trump surprised the business community in November just weeks after the election when he announced Chavez-DeRemer as his nominee to lead the U.S. Department of Labor. Her selection was met by skepticism by some in the employer community because she positions herself as a supporter of unions and labor rights.

Employee Defection and Trade Secrets

• FTC committed to targeting noncompetes (Feb. 26). In a somewhat surprising development, the Federal Trade Commission announced that it intends to continue scrutinizing noncompete agreements and more. Federal Trade Commissioner Andrew Ferguson unveiled plans for a Joint Labor Task Force that will identify and prosecute labor-market practices the agency deems to be “deceptive, unfair, and anticompetitive” and harmful to workers. Read more here.

Artificial Intelligence

• Trump appointed a new AI Czar (Dec. 5). David Sacks, a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation, now shapes federal policy on emerging technology. As the nation’s first “AI & Crypto Czar,” Sacks will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
• Trump rescinded Biden’s AI Order (Jan. 20). One of Trump’s first executive actions was revoking Executive Order 14110 (Biden’s comprehensive AI policy, which aimed at ensuring safe and ethical AI deployment). Read more here.
• Trump announced huge AI infrastructure investment (Jan. 21). The day after Inauguration Day, Trump announced a $500 billion private-sector-led AI infrastructure investment. Read more here.
• Trump issued a new AI order (Jan. 23). Trump’s AI executive order calls for a group of regulators to craft a new AI policy within six months intended to ensure “global AI dominance.”

Education

• Trump’s first-week actions impacted K-12 schools (Jan. 20-24). The flurry of executive orders signed by President Trump during his first few days of his second administration not only touch on immigration issues and potential raids or enforcement activities on K-12 school campuses but also demand a revisitation of DEI policies, bathroom and locker room access rules, and gender ideology studies.
• Feds rescind Title IX guidance impacting college athletic programs (Feb. 12). The U.S. Department of Education’s Office of Civil Rights (OCR) announced that Name, Image, and Likeness (NIL) payments will not be subject to Title IX gender equity requirements.
• Education Department kicked off a new era of Title VI Enforcement (Feb. 14). The department’s OCR also promised to begin cracking down, starting February 28, on “overt and covert racial discrimination” in educational institutions receiving federal funding. The agency’s Feb. 14 “Dear Colleague” letter created compliance confusion for many schools across the country, especially regarding their diversity-related activities.
  

Conclusion

The Trump administration has showed no signs of slowing down, and we expect that to continue throughout the next 50 days and beyond.

Reminder: OSHA 300A Logs Must Be Posted By Feb 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.

New Florida Law Blocks Certain Local Workplace Rules: Top 3 Things Employers Should Note

Under a new Florida law, employers will need to turn to state and federal agencies – rather than local governments – for guidance on certain key workplace rules. On April 11th, Governor Ron DeSantis signed HB 433 which preempts local governments from passing laws related to workplace heat safety protocols and curbs their ability to use contracting power to influence private employer wage rates and employee benefits. The new law also prohibits local governments from making their own rules about workplace scheduling or “predictive scheduling” for private employers. Here are the three top takeaways for employers as you prepare for compliance.

1. Heat Safety Protocols

Florida falls under federal OSHA jurisdiction, which covers most private-sector workers in the state. The new statute bans counties and municipalities from requiring private employers to offer heat safety protections to employees beyond what’s required under the Occupational Health and Safety Act (OSH Act).

For example, the Miami-Dade County Commission recently withdrew a bill that would have required employers to provide outdoor construction and farm workers with 10-minute breaks in the shade every two hours. Going forward, Florida employers should continue to ensure their practices comply with the federal OSH Act.

To provide a safe workplace, consider taking the following steps before summer:

• Perform a hazard analysis of all positions that may involve exposure to extreme heat. You should note that OSHA typically enforces heat related hazards through the General Duty Clause of the OSH Act.
• Prepare a heat illness prevention program, outlining a plan to reduce heat illnesses and injuries.
• Ensure employees have access to cold water throughout their shifts, provide cooling fans, and allow access to shaded areas.
• Designate an employee to monitor working conditions on hot days.
• Train employees on how to avoid heat illnesses and monitor workers for any symptoms.
• Ensure employees showing heat illness symptoms can obtain immediate medical attention.

This part of the new law will take effect on July 1.

2. Wages and Employee Benefits

Under HB 433, local governments will be prohibited from using their purchasing or contracting power to control the wages or employment benefits of entities they do business with. They will also be barred from awarding preferences to entities that offer more favorable wages and benefits to employees. Additionally, HB 433 moves local governments’ ability to:

• require an employer to pay a higher minimum wage than required by state or federal law;
• apply a state or federal minimum wage to wages that are exempt from a state or federal minimum wage; or
• provide employment benefits not otherwise required by state or federal law.

Notably, counties such as Broward and Miami-Dade – which have living wage ordinances mandating higher pay than the state minimum wage for service contractors and subcontractors – will be impacted the most by the wage requirement revisions.

These revisions to the Florida Statutes will go into effect for contracts entered after September 29, 2026.

3. Scheduling and Predictive Scheduling

Finally, HB 433 impacts a local government’s ability to force private employers to implement scheduling and predictive scheduling policies. Predictive scheduling laws require employers to provide work schedules to employees in advance. In some instances, predictive scheduling laws also require employers to provide additional benefits to employees. For instance, Oregon requires employers in the retail, hospitality, and food industries (with at least 500 employees worldwide) to provide schedules posted in an obvious location at least 14 days in advance, pay employees a penalty for shift changes with no notice, permit employees to provide input on availability and to reject shifts not on schedule, and allow employees at least 10 hours between shifts on back-to-back days.

Under Florida’s new legislation, effective July 1, any predictive scheduling requirement will have to be enacted by the Florida Legislature and Governor.

Reminder: OSHA 300A Logs Must Be Posted By Feb 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.

AAG’s 2023 Educational Seminar Recording is Available

The recorded presentation of AAG’s 2023 Educational Seminar held on April 11, 2023 is now available for viewing.

Guest Speaker and Attorney Keith Hammond, of Hammond Law Center, focused on changes in employment law that have occurred over the past year including a few new regulations that could affect your business which will go into effect this summer as well as non-competes and changes from the DOL, NLRB, and OSHA.

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

Should Employers Rescind Their Mask Mandates? A Pros and Cons List to Consider Before Dropping Your Pandemic Policies

As expected, state and local mask requirements continue to be lifted following the CDC’s loosening of its masking recommendations last month. As of today, only 10 states require masks – and many of those requirements apply only in certain limited settings, such as in the healthcare context, shelters, residential care facilities, and schools. The lifting of these governmental mask mandates raises the question of whether employers should continue to require masks in the workplace as a matter of internal policy. There’s no “one size fits all” answer to this question. Rather, each business should weigh the pros and cons of requiring masks in their workplace and decide what’s best for their particular locations and circumstances. 

What Does the Law Say?

Importantly, the CDC still recommends that masks be worn in places of high transmission. As of today, that covers only about 15% of the country and that number has been decreasing.  Employers who don’t follow the recommendations of the CDC (and applicable state and local health departments) do so at their own peril. That’s because OSHA or a state OSHA agency can – and often does – cite employers under the “General Duty Clause,” using the failure to follow recommended safety measures (i.e. CDC recommendations) as the basis for the alleged violation.

The General Duty Clause of the OSH Act broadly requires that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This clause has served as OSHA’s COVID-19 workhorse, as the agency has not successfully issued new specific pandemic-related standards applicable to most employers but repeatedly cited employers under the General Duty Clause for failures related to masking.

While OSHA looks to CDC recommendations in issuing its own guidance documents for employers related to COVID-19 and workplace safety, it has not yet updated them to reflect the CDC’s recent relaxation of masking recommendations.

It is therefore prudent for employers to continue to require masks, regardless of vaccination status, in places of high transmission and to continue to track the CDC Date on Community Transmission Levels to make sure your workplaces are not in a place of high transmission. In places of “medium” or “low” transmission, the CDC does not currently recommend masks (except in areas designated as “medium,” where it recommends that those who are immunocompromised or at high risk for severe illness should confer with their doctor about whether to wear a mask). That means in these areas it is up for the employers to decide what to do.

Finally, before brainstorming about possible next steps, make sure you understand the lay of the land in your own state. 

Pros and Cons of Lifting Mask Requirements

Once you understand the lay of the land, you’re ready to consider the various pros and cons associated with removing mask requirements at your business.

Pros:

• Many employees are ready to stop wearing masks and have begun doing so when not at work.
• As other employers lift their mask mandates, not doing so could hurt efforts to attract and retain talent. In today’s competitive labor market, this is a particularly relevant concern.
• Mask mandates are difficult to enforce, especially if the requirement is based on vaccination status.
• Mask mandates may create resentment from and between employees, especially if based on vaccination status.

Cons:

• As noted, it is prudent to keep masks in place at least in areas of high transmission. For national employers, this may mean different policies in different locations which can create logistical and communication issues.
• Recognize that you could open yourself up to an OSHA inspection (which you can track here) or a General Duty Clause citation if you drop your mask mandate too quickly or in an inopportune setting.
• While COVID-19 cases have been decreasing steadily, this was also the case in mid-2021. While we hope not to endure another dramatic spike in cases (reminiscent of the Delta and Omicron variants), one certainly could arise. So employers who lift their mask mandates need to accept the risk that they may have to reinstate them at some point (at least in some areas). As we’ve seen with stay-at-home recommendations, for example, putting the genie back in the bottle is not easy.
• While not everyone agrees on the degree of protection, masks clearly help in preventing transmission of COVID-19. As such, not requiring masks increases the chances of employees getting the virus, which could place stress on your workforce (and, in some locations, require you to provide paid leave).

 

What Businesses and Employers Should Do as CDC Loosens COVID-19 Mask Guidelines

As most states lift their mask mandates, the Centers for Disease Control and Prevention (CDC) announced Friday (2/25/22),  that the agency has adopted new metrics for determining whether to recommend face coverings – a shift that will result in most Americans no longer being advised to wear masks in indoor public settings. By moving away from looking solely at the number of COVID-19 cases in a given area but instead taking into account local hospitalizations and hospital capacity, the updated metrics will create room for businesses and employers to revisit their own approaches to masking policies. What should you know about these changes before making a decision for your organization?

What Changed?

The CDC’s previous guidelines recommended that fully vaccinated individuals residing in communities of substantial or “high” transmission wear a mask in indoor public settings. Given that the standards solely examined the positivity rate of COVID-19 cases in a community, roughly 95% of counties in the United States met the definition of substantial or high transmission.

The metrics used to determine whether to recommend masks will now take a more holistic view of the risk COVID-19 to a community. The number of COVID-19 cases will still but considered, but hospitalizations and local hospital capacity will also be taken into account. 

The CDC adopted “COVID-19 Community Levels” of “Low,” “Medium,” and “High” to help communities decide what recommendations and requirements to put in place. The CDC has provided a “COVID-19 County Check” tool to find the community level in a particular county and the prevention steps recommended for that county.

• Under the updated guidance, only those living in areas of “High” COVID-19 community levels are encouraged to wear a mask indoors in public, regardless of vaccination status. As of the CDC’s announcement, only 37% of counties in the U.S. fall into this category.
• In areas designated “Medium,” the CDC recommends that individuals who are immunocompromised or at high risk for severe illness should talk to their healthcare provider about whether to wear a mask or not. But all others in these areas – amounting to nearly 40% of U.S. counties – are no longer advised to wear a mask in these areas.
• In areas designated “Low,” the CDC leaves the decision of whether to wear a mask or not up to each person individually, based on personal preference and personal level of risk. 23% of counties are currently classified at the low-risk level.

Given the highly transmissible but less severe nature of the omicron variant, masks will no longer be recommended for the vast majority of Americans, including those who remain unvaccinated.

What Should Employers and Businesses Do?          

The CDC’s new guidance provides important considerations for employers who have been considering rescinding their masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. That’s because while OSHA has not yet expressly adopted the most recent CDC guidance, OSHA’s guidance repeatedly refers to CDC guidance.

Employers should review their local and state masking requirements and continue to comply with those requirements. For employers in areas where a mask mandate is no longer in place, they should review the CDC’s latest guidance and utilize the COVID-19 County Check tool to make an informed decision regarding their mask policy.   

Employers who lift their mask mandate should make sure that employees who continue to voluntarily wear a mask do not face illegal mistreatment at the hands of supervisors or coworkers. Make sure your employees know that retaliation, discrimination, and harassment will not be tolerated, and include this prohibition in written policies distributed to all workers.