Remember back in May 2021 (May 13 to be exact!) when the CDC dropped bombshell recommendations which outlined what individuals could / could not do based on vaccination status?! Vaccinated individuals rejoiced that they could remove their masks inside and largely dispense with social distancing. Unvaccinated individuals were, of course, less enthused. At that time, OSHA guidance had been to not treat employees differently based on vaccination status. The agency fairly quickly pivoted, affixing this banner to the top of its website on May 18, 2021:
“The Centers for Disease Control (CDC) has issued guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”
The last sentence of the banner was noteworthy because, while OSHA is squarely authorized to regulate workplace safety, CDC guidance is not legally binding on employers. Instead CDC guidance communicates what behavior the CDC thinks is safe based on the agency's expertise with infectious diseases.
Based on the CDC’s May 2021 vaccination status-based guidance, on June 10, 2021, OSHA updated its previous (Jan. 2021) Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. OSHA’s June 2021 guidance focused on the vaccinated versus unvaccinated workforce and stated that unless otherwise required by state, local or other applicable law, most employers no longer needed to take steps to protect their fully vaccinated workers who were not otherwise at-risk from COVID-19 exposure. The recommended steps OSHA recommended employers take in its June 2021 guidance applied largely to unvaccinated or otherwise at-risk workers.
Then—demonstrating the most apropos motto for this pandemic—we are living in unprecedented times!, the delta variant began ravaging parts of the country and spreading quickly, and COVID case numbers started rising dramatically. Accordingly, on July 27, 2021, the CDC changed its guidance regarding vaccinated individuals yet again. The CDC now advises that all individuals, regardless of vaccination status, should wear a mask indoors in locations where community spread is significant or high, which as of today accounts for nearly the entire country.
So what happened next? You guessed it, OSHA published updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to, in large part, align with the CDC’s July 27 recommendations. This guidance applies to non-healthcare employers (remember, those employers are now under a June 10, 2021 Emergency Temporary Standard (ETS) relating to protections against COVID in the workplace). The guidance is largely a reiteration of the original January 2021 (and updated June 2021) guidance, but it includes the CDC’s most recent face mask recommendations and a checklist on practices and procedures to protect unvaccinated and high-risk employees. OSHA also identified manufacturing, meat processing and high-volume retail and grocery as industries that are “higher risk” due to workplace environmental factors. The OSHA guidance lists actions employers in these industries should evaluate and implement (e.g., staggered break times, adequate ventilation, visual cues to remind workers to physically distance).
Other Key Takeaways from the Updated OSHA Guidance Include:
- Employers should encourage employees to get vaccinated by providing paid time off to do so, and adopt other appropriate measures that facilitate employee vaccination
- Employers should continue to implement multiple layers of controls (mask wearing, distancing, increase ventilation, etc.)
- Unless a workforce is 100% vaccinated, employers in locations with substantial/high transmission rates (again, nearly the entire country) should require masks for all workers
- Employers should consider requiring customers to do the same
Finally, remember that OSHA’s General Duty Clause applies to all employers and requires that the workplace be “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” There is little doubt at this point that COVID-19 (and especially the delta variant) are likely to cause death or serious physical harm (at least in some), and even though we are all fatigued by this pandemic, as goes the CDC, goes OSHA, and should go employers. Now is not the time to be lax on workplace controls.
Bridget Romero's practice is focused exclusively on employment and labor law. She regularly counsels business owners, HR professionals and in-house lawyers on a full range of matters, including performance management and HR best ...
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