Authored by: Sarah P. Reiner, Shareholder | August 18, 2021
In response to revised CDC guidelines and rising concerns regarding the spread of the Delta variant, on Friday, August 13, 2021, the federal Occupational Safety and Health Administration ("OSHA") issued updated Guidance on mitigating and preventing the spread of COVID-19 in the workplace. The stated purpose of the Guidance is to help employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk, including those who are immunocompromised. It is also intended to implement new guidance involving workers who are fully vaccinated but located in areas of substantial or high communication transmission – such as Florida. Importantly, in its Guidance, OSHA speaks directly to the issue of vaccination in the workplace. Importantly, in its Guidance, OSHA speaks directly to the issue of vaccination in the workplace, and states in pertinent part:
Facilitate employees getting vaccinated. Employers should grant paid time off for employees to get vaccinated and recover from any side effects. The Department of Labor and OSHA, as well as other federal agencies, are working diligently to ensure access to COVID-19 vaccinations. CDC provides information on the benefits and safety of vaccinations. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act if they provide paid time off from April 1, 2021, through September 30, 2021, for employees who decide to receive the vaccine or to accompany a family or household member to receive the vaccine and to recover from any potential side effects from the vaccine. Employers should also consider working with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. Finally, OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
This Guidance is directed to private employers subject to OSHA requirements. The Guidance is not a standard or regulation, and does not create any new legal obligations; however, for employers who are considering vaccination policies, it is another indicator that the federal government considers mandatory vaccination policies another manner of abating the workplace hazards associated with COVID-19, and endeavoring to protect their employees. Of course, OSHA also makes clear that employers considering vaccination and other COVID-19 policies (such as masking policies), must also implement accommodation processes for those who may need an accommodation due to a disability or a sincerely held religious belief, and must take steps to protect all workers, regardless of their vaccination status.
The Guidance goes on to address other areas of consideration for multi-layer employer COVID-19 safety practices, including COVID-19 testing, physical distancing for unvaccinated and at-risk employees, re-implementation of mandatory mask policies for all workers (even those who are fully vaccinated), customer/visitor mask requirements, education and training, workplace maintenance (ventilation) and cleaning, and infection and death record-keeping requirements (OSHA Form 300 logs). It also addresses the prohibition on retaliation against employees who voice concerns regarding COVID-19-related hazards, and suggests employers set up an anonymous process employees may use to voice those concerns.
In addition to the updated Guidance, OSHA also points to its relevant mandatory OSHA standards, the OSHA COVID-19 Emergency Temporary Standard (applicable to healthcare workplace settings), and the CDC’s Interim Public Health Recommendations for Fully Vaccinated People as additional resources for employers and employees related to COVID-19 safety practices. To the extent that you have questions regarding the updated Guidance, or evolving COVID-19 workplace safety and staffing issues, including mandatory vaccination policies and vaccination incentives, we recommend you reach out to your GrayRobinson employment law counsel to discuss your workplace options.