On June 10, 2021, the same day that it released its long-anticipated COVID-19 emergency temporary standard (ETS) for healthcare settings (which we discuss here), the U.S. Occupational Safety and Health Administration (OSHA) also issued updated COVID-19 guidance for non-healthcare workplaces (Guidance). The Guidance provides that, with limited exceptions, employers generally need not implement any COVID-19 safety measures for fully vaccinated workers but should continue to take a multi-pronged approach to protecting unvaccinated workers and those who are “otherwise at-risk” due to compromised immunity. Unlike the healthcare ETS, the Guidance for non-healthcare settings is advisory and not legally binding.
What does the Guidance say about fully vaccinated workers?
Responding to the Centers for Disease Control and Prevention’s (CDC’s) recent Interim Public Health Recommendations for Fully Vaccinated People, OSHA’s Guidance takes the position that, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, employers not covered by the ETS or mask requirements for public transportation no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. A worker is “otherwise at-risk,” according to OSHA, if the worker has a health condition such as a prior transplant or takes certain medications limiting the worker’s ability to have a full immune response to the COVID-19 vaccine.
What safety measures are recommended for unvaccinated and otherwise-at-risk workers?
OSHA recommends that employers engage with employees and their representatives to implement “multi-layered interventions” to protect unvaccinated and otherwise at-risk workers from COVID-19 exposure. The recommendations include the following measures, many of which will be familiar to employers that have closely followed prior OSHA and CDC guidance:
- Encourage vaccines and grant paid time off for employees to get vaccinated (note that paid vaccine leave is not required by federal law but is required under several state laws, including in California and New York, and some employers who grant paid leave are entitled to federal tax credits);
- Instruct workers who are infected, workers who are unvaccinated and have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work;
- Implement physical distancing for unvaccinated and otherwise at-risk workers from other unvaccinated and otherwise at-risk persons;
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other personal protective equipment (PPE), and suggest that unvaccinated visitors wear face coverings;
- Educate and train workers (including employees, contractors, and any other individuals onsite) on the employer’s COVID-19 policies;
- Follow CDC recommendations regarding maintenance of ventilation systems and routine cleaning and infection;
- Record and report COVID-19 infections and deaths (though notably OSHA does not require recording of adverse reactions to COVID-19 vaccines, as we previously reported); and
- Ensure that workers know whom to contact with questions or concerns about COVID-19-related safety issues and consider setting up a hotline for anonymous complaints.
What does the Guidance recommend for “higher-risk” non-healthcare workplaces?
For “higher-risk workplaces” – defined by the Guidance to include manufacturing; meat, poultry, and seafood processing; and high-volume retail and grocery – the Guidance recommends the following additional steps for protecting unvaccinated and otherwise at-risk workers:
- Stagger break times;
- Stagger arrival and departure times;
- Provide signage and floor markings to promote physical distancing;
- Improve ventilation;
- Engage in proper spacing of unvaccinated and otherwise at-risk workers on assembly lines;
- In retail settings, suggest masks for customers, consider use of physical distance measures such as clear barriers, and shift stocking shelves and similar activities to off-peak or after hours; and
- Make sure that all unvaccinated and otherwise at-risk workers sharing vehicles wear appropriate face coverings.
What should employers do in response to the Guidance?
In addition to providing a roadmap of the COVID-19 safety steps that OSHA recommends in non-healthcare settings, the Guidance confirms that as a matter of federal law, employers can relax requirements such as face coverings and social distancing for fully vaccinated employees who are not otherwise at-risk. However, employers must also take into account laws and guidance from state and local authorities, which may impose stricter standards. Many jurisdictions have issued updates to their rules and recommendations in light of the CDC’s recommendations for fully vaccinated individuals.
Employers should carefully consider what combination of protections to implement for unvaccinated and otherwise at-risk workers based on an assessment of their particular workplaces. Among other things, employers must decide whether to inquire into employees’ vaccine status (which, as we have discussed, the Equal Employment Opportunity Commission (EEOC) states is permissible) and monitor unvaccinated employees’ compliance with safety protocols, or adopt an “honor system.” There is no one-size-fits-all approach.
OSHA’s statements regarding the need to protect “otherwise at-risk” employees, even if fully vaccinated, can present difficulties for the unwary employer. Although the EEOC has stated that employers may ask about an employee’s vaccination status, employers should not inquire as to whether employees are “otherwise at-risk,” as this is likely to elicit disability information in violation of the Americans with Disabilities Act (ADA). Employers may, however, take other legally-compliant actions to protect “otherwise at-risk” employees, such as by inviting all employees to come forward to request workplace accommodations. Employers should work closely with their human resources department or counsel in navigating the interplay between protecting “otherwise at-risk” employees and not running afoul of the ADA.
For assistance with these and other COVID-19 compliance issues, contact an author of this post or the Hogan Lovells lawyer with whom you regularly work.