The Occupational Safety and Health Administration (OSHA) is relaxing its COVID-19 recommendations for fully vaccinated workplaces, but the agency still advises employers to take action to protect unvaccinated workers.

On June 10, OSHA announced updated guidelines as well as new rules for frontline health care employers. OSHA’s final word reflects new guidance from the Centers for Disease Control and Prevention (CDC) released in May that says fully vaccinated people can safely do without masks and physical distancing in most situations.

Previous OSHA guidelines, released in January, instructed employers not to treat vaccinated and unvaccinated employees differently because at that time there was insufficient evidence related to the risk of transmission of the virus by people vaccinated.

How can an employer know if his employees have been vaccinated? On May 28, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance to clarify that employers can request, but any documents required by an employer should be kept confidential and separate from personnel files. ordinary.

In addition to new OSHA guidelines, the agency announced a emergency temporary standard (ETS) aimed at reducing the risk to frontline healthcare workers most likely to come into contact with people infected with the virus.

Rebecca C. Seguin-Skrabucha, a lawyer with Bodman SA in Troy, Michigan, explains that the ETS “imposes legal requirements on employers for covered health care.” The guidelines, on the other hand, serve as a summary of best practices and “do not create any new legal obligations”.

“An employer who violates the ETS may be subject to civil penalties per violation,” says Seguin-Skrabucha. An employer who does not act in accordance with the guidelines is not liable to penalties “if the employer’s discrepancy interferes with the provision of a safe and healthy workplace”.

Albert L. Vreeland, a lawyer with Lehr Middlebrooks Vreeland & Thompson, PC, in Birmingham, Ala., says that while the guidelines are not a binding rule, they “suggest how an OSHA inspector may interpret an employer’s obligations” under the general duty clause of the Occupational Safety and Health Act, which obliges employers to provide a working environment.

OSHA priorities, future actions

Vreeland says the ETS for health care employers and the updated guidelines for other employers “show OSHA is prioritizing protections for unvaccinated employees and relaxing the requirements for vaccinated employees.”

“With that in mind, employers can relax mask and social distancing requirements for vaccinated employees,” Vreeland said. “Unvaccinated employees who cannot socially distance themselves in their work should still be required to wear masks. “

Shortly after taking office, President Joe Biden called on OSHA to make rules for all employers, but “because the vaccine rollout has been faster and more successful than originally anticipated, the rationale The rule’s “emergency” for the general industry has declined, “Vreeland said.

“But due to the increased risk of continued exposure to healthcare workers, OSHA has concluded that there is still an urgent need for specific action,” Vreeland said. “Unless there is another rise in infections, I expect this to be the last of the COVID-specific rules. “

Seguin-Skrabucha also says that if standards for other industries are published, “I expect this to be the result of changed circumstances regarding the spread of COVID-19, the effectiveness of COVID-19 vaccines against the variants, and / or the trajectory of COVID-19 in specific industries. “

Seguin-Skrabucha urges employers to review national and local requirements. If they are more restrictive than federal guidelines, state and local rules control. She also says employers should take the advice seriously and remember that it is always recommended to require physical distancing and face coverings for unvaccinated people.

New orientation

The new directive says that unless federal, state, local, tribal or territorial law requires it, “most employers no longer need to take steps to protect their workers from exposure to COVID- 19 in any workplace or in well-defined parts of a workplace. , where all employees are fully immunized.

Among other things, the guidelines state that employers should:

• Grant employees paid time off to get vaccinated and recover from vaccine side effects;
• Request all infected workers, unvaccinated workers who have been in close contact with someone who has tested positive, and all workers showing symptoms of COVID-19 to stay at home;
• Establish physical distancing for unvaccinated and otherwise at-risk workers in all common work areas; and
• Provide unvaccinated and otherwise at risk workers with face covers or surgical masks, unless their work requires a respirator or other personal protective equipment.

ETS Health

OSHA’s announcement says the ETS aims to protect workers facing the highest coronavirus risks, those who work in environments where suspected or confirmed COVID patients are being treated. This includes hospitals, nursing homes and assisted living facilities; emergency responders; home health workers; and employees in ambulatory care facilities where patients with suspected or confirmed COVID are treated.

OSHA’s announcement states, among other things, the ETS:

• Non-exempt facilities should conduct a risk assessment and have a written plan to mitigate the spread of the virus.
• Employers in the healthcare sector must provide certain employees with N95 respirators or other personal protective equipment.
• Employers should ensure a distance of six feet between workers and, in situations where this is not possible, they should erect barriers between workers where possible.
• Covered employers must provide workers with paid time off to get vaccinated and recover from any side effects.
• Covered employees who have the virus or who may be contagious should work remotely or be separated from other workers if possible or be granted paid time off, up to $ 1,400 per week. For most businesses with fewer than 500 employees, American Rescue Plan tax credits can be refunded through these provisions.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR’s web and print publications.