OSHA recently released two sets of updated guidance. First, OSHA released an emergency temporary standard (“ETS”) to protect at-risk health care workers from COVID-19. The ETS is a binding and enforceable OSHA standard, but is only applicable to the healthcare industry.
Second, OSHA released updated guidance applicable to all employers. Contrary to the ETS, this more broadly applicable guidance is, in large part, non-binding guidance, as opposed to a specifically enforceable regulatory rule or standard. One primary takeaway from OSHA’s updated guidance is that OSHA’s focus has narrowed significantly in terms of COVID-19 protections – from protection of all employees to a targeted approach of protecting unvaccinated employees. That being the case, OSHA states in its guidance that “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.”
In workplaces where unvaccinated employees work, OSHA’s guidance contains several recommendations, some of which are intended as non-binding guidance and some of which are required by OSHA standards. These can be summarized as follows:
- Grant paid time off for employees to get vaccinated;
- Instruct any workers who are infected, unvaccinated workers who 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 to prevent or reduce the risk of transmission of the virus that causes COVID-19;
- Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
- Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks;
- Educate and train workers on your COVID-19 policies and procedures;
- Suggest that unvaccinated customers, visitors, or guests wear face coverings;
- Maintain sufficient ventilation systems;
- Perform routine cleaning and disinfection;
- Record and report COVID-19 infections and deaths;
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
- Follow other applicable mandatory OSHA standards.
Whether the above items are obligatory standards or non-binding guidance depends on a number of factors, including whether the item is covered under an existing OSHA standard, whether the type of work being performed necessitates a higher level of protection, physical characteristics of the workplace, and other details specific to the employer and workplace.
Note that one of the stated goals of OSHA’s updated guidance is to encourage employees to get vaccinated. To that end, generally speaking, employers can incentivize or even require employees who physically work in the workplace to get vaccinated. However, employers cannot discriminate against employees whose disabilities or religious convictions do not permit them to be vaccinated. Employers should engage in an interactive process with such employees and may be required to accommodate them.
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If you have any questions regarding the ETS or OSHA’s updated guidance and how it might apply to your company, please reach out to me or Arthur Chapman's Employment Law Group. We are happy to discuss.