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Helpful Guidance Comes to Those Who Wait: OSHA Issues Long-Awaited COVID-19 Safety Rule

After 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.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 162
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About this Author

Stephanie Gaston Labor Employment Houston Attorney Bradley Arant Boult Cummings LLP
Partner

As an experienced counselor and litigator, Stephanie Gaston’s practice is focused on resolving labor and employment matters for private employers, public entities and nonprofits. She also represents school districts, and governmental entities. Stephanie regularly defends companies facing discrimination, harassment, retaliation, class actions, and other claims under federal, state, and local laws, including the Fair Labor Standards Act, Title VII, ADA, FMLA, USERRA, and the Texas Commission on Human Rights Act. She advises and counsels employers on minimizing the risks of litigation,...

713-576-0355
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
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