OSHA COVID-19 UPDATE

Late last week, the Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 guidance to employers in light of recent guidance from the Centers for Disease Control and Prevention (“CDC”) relating to vaccinated individuals. A link to the revised guidance is here.  OSHA modified its prior guidance in the following material ways:

• The prior guidance remains in effect recommending both mask wearing and physical distancing, except those recommendations are now limited to unvaccinated employees and vaccinated employees “at risk” (i.e. those who have certain underlying conditions or have taken certain medications relating to impairment of their immune system).  Employers are advised to have face coverings or surgical masks available for employees.
• Employers are advised to grant paid time off for employees to get vaccinated.
• Employers should suggest that unvaccinated guests, customers and visitors wear face protection.

The revised guidance creates some issues employers should address.  The first challenge is to determine which employees are vaccinated and which are not.  Some employers have used an honor system, relying on the employees to be truthful about their vaccination status.  Others have required employees to provide proof of vaccination to be exempted from the face mask and distancing requirements.  Clearly, use of the honor system is less intrusive, but given that OSHA has cited employers based on a failure to adhere to the guidance, OSHA could find that the honor system is insufficient.  For employers requesting proof of vaccination, it is important to follow the EEOC’s prior guidance on this topic, including the requirements that such information be strictly limited to proof of vaccination only without any medical or genetic information and be properly maintained in an employee’s confidential medical file.

The second problem for employers is how to address OSHA’s guidance concerning vaccinated but “at risk” employees.  Inquiring about an employee’s medical condition implicates potential violations of the Americans with Disabilities Act (“ADA”) as that law limits what an employer can lawfully ask of an employee and also limits taking certain employment actions based on an employee’s medical condition.  We do not advise that employers make that type of inquiry, but rather communicate to employees that they should consult with their medical provider to determine whether they are at risk and should continue to wear a mask and social distance.  Employers may wish to consult with experienced counsel to navigate the nuanced interplay between the updated OSHA guidance and obligations under the ADA and other employment laws.

OSHA also issued an Emergency Temporary Standard (“ETS”) on COVID-19, which contains specific and comprehensive requirements related to COVID-19, but it is limited to certain health care workers.  The ETS is linked here.  

Remember that all employers are covered under the Occupational Safety and Health Act even if they have only one employee, and OSHA has received substantial funding to enforce its prohibition on retaliating against any employee who raises a safety-related complaint.  Therefore, adherence to the guidance may avoid an encounter with OSHA and resulting disruption and expense. 

If you have any questions regarding the revised OSHA COVID-19 guidance, please contact one of our employment attorneys below.