The Occupational Safety and Health Administration (OSHA) is easing its COVID-19 recommendations for fully vaccinated workplaces, but the agency is still advising employers to take steps to protect any unvaccinated workers.
On June 10, OSHA announced updated guidance along with new rules for frontline healthcare employers. The latest word from OSHA reflects new guidance from the Centers for Disease Control and Prevention (CDC) released in May that says fully vaccinated people can safely go without masks and physical distancing in most situations.
Previous OSHA guidance, released in January, instructed employers not to treat vaccinated and unvaccinated employees differently because at that time, there wasn’t sufficient evidence related to the risk of transmission of the virus by vaccinated people.
How can an employer know whether employees have been vaccinated? On May 28, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance to clarify that employers may ask, but any documentation an employer requires must be kept confidential and separate from regular personnel files.
In addition to OSHA’s new guidance, the agency announced an emergency temporary standard (ETS) aimed at lessening risk for frontline healthcare workers most likely to have contact with people infected with the virus.
Rebecca C. Seguin-Skrabucha, an attorney with Bodman PLC in Troy, Michigan, explains the ETS “imposes legal requirements on covered healthcare employers.” Guidance, on the other hand, serves as a summary of best practices and “creates no new legal obligations.”
“An employer that violates the ETS may be assessed civil penalties on a per-violation basis,” Seguin-Skrabucha says. An employer that fails to act in accordance with the guidance is subject to penalties only “if the employer’s divergence interferes with the provision of a safe and healthful workplace.”
Albert L. Vreeland, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama, says that although guidance is not an enforceable rule, it does “suggest how an OSHA inspector may interpret an employer’s obligations” under the General Duty Clause of the Occupational Safety and Health Act, which requires employers to provide a safe work environment.
OSHA Priorities, Future Actions
Vreeland says both the ETS for healthcare employers and the updated guidance for other employers “shows that OSHA is prioritizing protections for unvaccinated employees and relaxing requirements for vaccinated employees.”
“With this in mind, employers can relax mask and social distancing requirements for vaccinated employees,” Vreeland says. “Unvaccinated employees who cannot social distance in their jobs should still be required to wear masks.”
Soon after taking office, President Joe Biden directed OSHA to issue rules for all employers, but “as the vaccine rollout has been faster and more successful than originally anticipated, the ‘emergency’ justification for the rule for general industry lessened,” Vreeland says.
“But because of the continuing heightened risk of exposure for healthcare workers, OSHA concluded there was still an emergency need for specific measures,” Vreeland says. “Unless there is another surge in infections, I expect this will be the last of the COVID-specific rules.”
Seguin-Skrabucha also says if standards for other industries are published, “I expect it will be the result of a change in circumstances with regard to the spread of COVID-19, the effectiveness of COVID-19 vaccines against variants, and/or the trajectory of COVID-19 within specific industries.”
Seguin-Skrabucha urges employers to review state and local requirements. If more restrictive than federal guidance, state and local rules control. She also says employers should take the guidance seriously and remember that requiring physical distancing and face coverings for unvaccinated individuals are still recommended.
The new guidance says that unless required by federal, state, local, tribal, or territorial law, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.”
Among other things, the guidance says employers should:
- Grant paid time off for employees to get vaccinated and to recover from any side effects from the vaccine;
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who has tested positive, and all workers with COVID-19 symptoms to stay home;
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas; and
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks unless their work requires a respirator or other personal protective equipment.
OSHA’s announcement says the ETS is aimed at protecting workers facing the highest coronavirus hazards—those working in settings where suspected or confirmed COVID patients are treated. That includes hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings where suspected or confirmed COVID patients are treated.
OSHA’s announcement says, among other things, the ETS:
- Nonexempt facilities must conduct a hazard assessment and have a written plan to mitigate virus spread.
- Healthcare employers must provide some employees with N95 respirators or other personal protective equipment.
- Employers must ensure six feet of distance between workers, and in situations where that isn’t possible, they should erect barriers between employees where feasible.
- Covered employers must provide workers with paid time off to get vaccinated and to recover from any side effects.
- Covered employees who have the virus or may be contagious must work remotely or otherwise be separated from other workers if possible or be given paid time off, up to $1,400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.