By: Matthew A. Bowles, Associate | June 16, 2021
On June 10, 2021, OSHA updated its COVID-19 guidance for workplaces not covered by the new COVID-19 Emergency Temporary Standard which applies only to certain health care industry employers. The updated guidance recognizes the CDC’s Interim Public Health Recommendations for Fully Vaccinated People and applies such recommendations to OSHA’s workplace guidance. Significantly, OSHA recognizes that vaccinated employees are at low risk for serious COVID-19 related illness and, therefore, focuses its guidance on protecting unvaccinated employees in the workplace.
Specifically, OSHA recommends that employers implement social distancing protocols for unvaccinated and at-risk employees, to include, but not limited to, maintaining six feet of separation, limiting the number of unvaccinated employees in a single location, and providing transparent shields or solid barriers where unvaccinated employees are unable to maintain social distancing. In focusing on unvaccinated employees, OSHA’s guidance creates potential pitfalls for employers. In particular, employers must ensure that they do not engage in discriminatory practices against employees who are not vaccinated because they are pregnant, they have a disability, and/or they have closely held religious beliefs. Employers should seek the advice of their labor and employment counsel prior to implementing any OSHA recommendations directed solely at unvaccinated employees such as limiting unvaccinated workers in the workplace. Plaintiff’s firms may be eager to argue that such protocols, if not properly implemented, are discriminatory against any of the foregoing protected classes. Employers will also note that OSHA’s guidance encourages pro-employee benefits such as paid vaccine leave which is clearly influenced by the current administration’s labor and employment agenda. OSHA’s updated guidance can be found in its entirety at OSHA’s website here.
We will continue monitoring the agencies for COVID-19 related updates and circulate same as pertinent updates become available.