When Texas Governor Greg Abbott ended the statewide mask mandate and removed most capacity restrictions on businesses in Texas, it began a multi-phase process that Texas businesses and employers will face over the coming months, which could cause conflict that could lead to conflict and litigation. A helpful paradigm for managing expectations is to view the reopening of Texas in three phases: (1) allowance; (2) encouragement; and (3) requirement.
For now, Texas businesses are in the “allowance” phase because the Governor’s order lifted restrictions on masks and capacity limitations. Businesses are now free to chart their own course towards re-opening. During this phase, businesses will “allow” more employees to return and more of their functions to reopen/resume. The burden shifts from state and local governments to individual businesses to evaluate the unique pandemic-related circumstances facing their customers, employees and operations. Based on these evaluations, businesses will decide what restrictions they want to impose on their capacity and usage (including whether to require masks). There are myriad risk factors to consider, including: facilities’ configuration; proximity of employees and customers at varying occupancy levels; pre‑existing health conditions of individual employees; and vaccination rate for employees and the patronizing community; changing federal, state and local laws; and a host of other issues. The recognized standards of care set by the Centers for Disease Control and Prevention (CDC) and the regulatory requirements imposed by the Occupational Safety and Health Administration (OSHA) continue to remain in full force and effect – meaning coronavirus mitigation practices are expected to continue in some form for the foreseeable future.
Even though businesses are allowed to operate without restrictions, many businesses are expected to follow a self-imposed, incremental approach to adding capacity (when open to the public) and are mostly retaining the status quo on mask requirements. However, it is likely that some areas (especially exurban and rural areas) will be more aggressive in removing masking and social distancing restrictions.
The “encouragement” phase will follow the allowance phase as vaccinations become more common and confidence with in-person interactions increases. As businesses loosen restrictions and start “encouraging” employees to return to work, employers may communicate this desire by simply expressing a “preference” that workers return to offices. Some businesses may schedule in-person meetings as a beginning point for this process.
Businesses should certainly aim to make reasonable accommodations for their employees and be sensitive to individual employee health concerns. For example, an unvaccinated person with underlying health risk factors may be more sensitive to returning than other workers. Businesses unquestionably have a duty to provide a reasonably safe workplace to their employees, and to control certain known risks and hazards. In the current environment, employee complaints over an unsafe work environment may lead to investigations or litigation if adequate protocols are not in followed.
During the “requirement” phase, employees will shift from merely encouraging employees to return to office to requiring their return. This phase will likely occur as the state and country surpass the critical vaccination threshold for herd immunity and cases drop. While some business practices may be permanently altered by the pandemic, many businesses will likely return to old patterns to better address longstanding concerns including company culture, employee morale, and client requirements. Businesses will likely find some employees that refuse to return to work in offices or other facilities for various reasons. These may range from legitimate health concerns for unvaccinated, high-risk individuals to employees who just enjoy the lifestyle flexibility afforded by working from home. Additionally, it remains an open question whether employers may require employees to receive a COVID-19 vaccination before they return to work. However, compulsory vaccinations for other diseases are not unusual in many fields, even in the pre-pandemic environment.
With the transition from the “encouragement” phase to the “requirement” phase, conflict and friction are sure to develop between employees and employers. Some of these conflicts have already manifested in lawsuits filed by employees who were terminated for refusing to return to work. Businesses may wish to insulate themselves from liability by consulting experts to help navigate these uncertain waters and handle such delicate situations in compliance with applicable laws.
Heath Cheek is a partner and Dominic L. Cruciani is an associate with Bell Nunnally in Dallas.