Helpful Guidance Comes to Those Who Wait: OSHA Issues Long-Awaited COVID-19 Safety RuleAfter the CDC updated its mask guidance, we have all be wondering: Can we eliminate our mask and social distancing requirements for vaccinated employees? Can we ask employees if they have been vaccinated? Can we hold meetings and social gatherings in person again? While we gave you options and best practices in a recent post, we have new information from the DOL in the form of an Emergency Temporary Standard (ETS).

OSHA has finally issued its widely anticipated emergency rule that sets workplace safety parameters for employers in the healthcare sector and makes suggestions for unvaccinated employees in other settings. The guidance comes complete with a flow chart to help you determine if your workplace is covered by the ETS and a sample employee questionnaire to help covered employers screen employees before each work day. While the guidance is targeted toward protecting healthcare workers from COVID-19, it contains some voluntary guidelines for employers outside the healthcare industry to protect unvaccinated workers with a special emphasis on the manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing industries.

Healthcare Industry Specifics

The ETS requires employers in the healthcare sector (i.e., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, ambulatory care settings) to conduct a hazard assessment and have a written plan to mitigate the spread of COVID-19 for workers who are at a heightened risk of contracting the virus as they provide essential healthcare services to the public. Additionally, covered employers must maintain social distancing protocols or implement barriers, make sure that patients are properly screened for virus symptoms, and give workers paid time off to get vaccinated and to recover from vaccine side effects. The ETS includes a carve-out for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are not permitted to enter. The ETS exempts fully vaccinated workers from wearing a mask and social distancing when in areas where there is no reasonable expectation that a person with COVID-19 will be present.

The ETS is effective immediately upon publication, and employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA has indicated it will use discretion to avoid penalizing employers who are making a good-faith effort to comply.

Non-Healthcare Specific Guidelines

OSHA also issued voluntary guidelines for employers that operate outside of the healthcare context to protect unvaccinated workers who (like healthcare workers) are at a higher risk of being exposed because their work involves close contact. In these higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, OSHA advises employers to:

  • Suggest masks for unvaccinated (or unknown status) employees, customers and other visitors
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing
  • Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in the CDC’s guidance on “Ventilation in Buildings”
  • Continue to 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

Takeaways

The DOL and OSHA will continue to update the guidance over time with the goal of keeping up with developments in science and best practices. The guidance makes clear that all employers, regardless of industry, should be encouraging employees to get vaccinated and must continue separating from the workplace all infected people, all people experiencing COVID-19 symptoms, and any unvaccinated people who have had close contact with someone with COVID-19. We will continue bringing you the latest and greatest so that you can stay on top of developments and follow the latest guidance to ensure you are fulfilling your responsibility to provide a safe and healthy workplace.

New EEOC Facts on Getting “Vaxxed” and Getting BackThe EEOC updated its very clearly titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” last week to provide some much needed guidance on COVID-19 vaccine issues. While the EEOC’s guidance is helpful, not surprisingly, it leaves open some questions. Section K of the guidance addresses vaccines, so the references below are to the specific questions and answers in that section.

  • Employers can mandate vaccines.

Nothing has changed on this front. You can mandate that employees get vaccinated, but will need a process to consider reasonable accommodations for disabilities, sincerely held religious beliefs, and pregnancy.

  • You can ask if an employee has been vaccinated.

K.9 reiterates that asking an employee if he or she has been vaccinated or requesting documentation of vaccination is not a disability-related inquiry.  If the employee says no, don’t ask why (as that could elicit disability-related information).  Also, if the employee provides confirmation of vaccination, it is confidential medical information and must be kept confidential.

  • What if you are merely incentivizing employees to get vaccinated?

For those employers who opted to encourage rather than require the vaccine, the guidance provides some help on employee incentives (K.16 and K.17). What you can offer as an incentive depends on whether you or your agent are providing the shot. If you are giving the shot (which means you will be asking all of those medical inquiries that have to be asked before you can give the vaccine), then (1) the questions have to be job related and consistent with business necessity and (2) any incentive has to be nominal. The first part is that you (rather than a pharmacy or health department) are asking the medical questions — and you can only ask current employees medical questions that are job related and consistent with business necessity. The second part is that because you are asking the questions, you can’t offer an incentive that may coerce an employee into answering. Even if the incentive is only to encourage vaccination, you are still asking the questions, so you need to offer something that no one will feel that they just have to have.

On the other hand, if you are not giving the shots — you are just telling employees to bring proof of vaccination to get the incentive — you have more leeway. Because you are not asking those pre-vaccine medical questions, employees will not feel that they have to disclose their confidential medical information to get the incentive, so you can offer something more substantial.

Something to keep in mind on the incentive side: The vaccines are pretty much available to everyone at this point, so your employees who want the vaccine have probably gotten it. You should think about whether incentives will really increase the number of your vaccinated employees or just cause division among them.

  • Be ready to talk about reasonable accommodations.

There has been a lot of talk about the interactive process in which all employers have to engage if an employee requests a reasonable accommodation for a disability or sincerely held religious belief. In K.2 and K.5., the guidance outlines the kinds of reasonable accommodations you should consider in those circumstances. While these are not groundbreaking ideas, this is a pretty good checklist, and thoughtful employers should be sure to consider all of the options listed — face masks, social distancing, modified or staggered shifts, changes to the work environment (e.g., improved ventilation or limiting contact with others), periodic testing, telework, or voluntary reassignment to a vacant position. Are these alternatives reasonable in your location and for the position at issue? Remember that if the accommodation requires you to eliminate an essential function of a job, it is not reasonable.  In coming to that conclusion, make sure the function is, in fact, essential.

K.11 provides guidance on what to do with your fully vaccinated employees who request accommodations for an underlying disability because they are afraid of the heightened risk of severe illness from COVID-19. Just because there is a vaccine doesn’t mean that these employees won’t request accommodations. This guidance sends a clear message that employers need to be ready to engage in the interactive process with these employees as well.

Leggo My Eggo and Pass the Legal Advice! Come to Breakfast with Bradley on June 17Employers across the country are curious how the labor and employment world may change under President Biden’s administration. March saw Marty Walsh, former mayor of Boston, confirmed as the U.S. Secretary of Labor. What is his philosophy? The DOL postponed the effective date of a new Independent Contractor Rule. Will it ever go into effect? There has been a lot of discussion about increasing the minimum wage. Will it ever happen?

These questions and many more hopefully will be addressed by Will Manuel and Anne Knox Averitt on June 17 when they present at our next Breakfast with Bradley titled “What to Expect When You’re Expecting  ̶  Changes in Employment Law Under a New Administration.” This event will be done virtually, so you can have your chicken biscuit at your work-at-home desk or your office.

Register for this webinar.