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Employers must weigh risks, follow guidance in returning to the office, St. Louis legal experts say

"Employers have some very serious decisions to make regarding how much risk they are willing to take in requiring employees to return to the workplace"
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ST. LOUIS — As the COVID-19 delta variant continues to spread uncertainty over plans to require employees to return to the office, employers should weigh risk factors to protect themselves from litigation, two St. Louis legal experts said.

"Employers have some very serious decisions to make regarding how much risk they are willing to take in requiring employees to return to the workplace," said Candace Johnson, an attorney at Carmody McDonald whose practice includes labor and employment.

The federal Occupational Safety and Health Administration on Aug. 13 updated its guidelines on how to keep workers safe from COVID-19. OSHA said employers should "consider adopting policies that require workers to get vaccinated or to undergo regular testing — in addition to mask wearing and physical distancing — if they remain unvaccinated."

The federal agency also is recommending that employees, including those who are fully vaccinated, wear masks in regions with substantial or high COVID-19 transmission rates, said Timm Schowalter, a shareholder and attorney at Sandberg Phoenix. The website of the Centers for Disease Control and Prevention includes the transmission rates for all counties and metro areas in the nation. As of Thursday, all of Missouri had high or substantial rates, except for Scotland County, where the transmission rate was moderate.

"It's very hard for OSHA to prove anyone actually got COVID from the workplace, because it could happen anywhere," said Schowalter, who is a member of the firm's labor and employment team. Although the guidance is not a regulation and "creates no new legal obligations" in the agency's words, Schowalter said the conservative approach is to follow it.

"What (OSHA) does is make sure employers have proper policies and procedures in place and adequate training," he said.

A recent national survey by The Business Journals found nearly half of companies that haven't returned to the office say the delta variant is causing them to reconsider or scrap their return plans for now. Earlier this month, Centene Corp., St. Louis' largest public company, said it is delaying the first phase of its "return to in-person engagement" from Sept. 13 to Oct. 18 to give employees more time to be fully vaccinated.

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