December 7, 2021

Volume XI, Number 341

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December 07, 2021

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December 06, 2021

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OSHA Issues New COVID-19 Guidance for All Industries Not Covered by Its ETS for Healthcare

On June 10, 2021, simultaneous with the issuance of its Emergency Temporary Standard (ETS) for COVID-19 focusing on healthcare employers, the Occupational Safety and Health Administration (OSHA) released its new COVID-19 guidance for all industries not covered by the ETS.

Significant new issues addressed in OSHA’s revised COVID-19 compliance guidance include the agency’s adoption of the U.S. Centers for Disease Control and Prevention’s (CDC) May 13, 2021, guidance relating to fully vaccinated employees. According to the CDC, and now officially OSHA, “under most circumstances” fully vaccinated employees “can resume activities without wearing masks or physically distancing.” However, OSHA recognizes (just as the CDC cautioned) that even fully vaccinated individuals may not be protected from COVID-19 if they have a health condition or take medications that weaken their immune systems—individuals defined by OSHA as “at-risk workers.”

According to OSHA:

“Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.” [Emphasis in original.] OSHA also stated in its guidance that [e]mployers should consider taking steps to protect” unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.

The agency said that its guidance then focuses “only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” First, OSHA recommends that employers encourage employees to get vaccinated with paid time off to do so and to also recover from potential side effects from the vaccine. The guidance also includes very-familiar-looking steps that OSHA recommends employers take:

  • instructing unvaccinated and at-risk workers who have had close contact with an infected person, and workers showing signs or symptoms, to stay home from work;

  • requiring social distancing and masking for unvaccinated and at-risk workers;

  • providing training in an appropriate language that employees can understand;

  • maintaining ventilation systems;

  • following CDC guidance on cleaning and disinfection; and

  • protecting employees from retaliation and establishing an anonymous system for employees “to voice concerns about COVID-19–related hazards.”

The guidance also includes provisions for “[h]igher-[r]isk [w]orkplaces [w]ith [m]ixed-[v]accination [s]tatus [w]orkers,” and establishments where close contact may be more frequent such as “manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing.” The appendix to the guidance includes “best practices” for these types of workplaces, which repeats previous OSHA guidance:

  • stagger arrival, break, and departure times;

  • mark employee travel paths to avoid close contact;

  • improve ventilation strategies; and

  • evaluate spacing on production lines and install barriers where employees cannot be spaced more than six feet apart.

The guidance also addresses situations in which employees travel in employer-provided buses and vans. OSHA recommends that employers notify unvaccinated and at-risk workers of the risks of virus exposure and, “to the extent feasible, help them limit the number of such workers in one vehicle.” OSHA also stated that employers should also require unvaccinated and at-risk workers to wear face coverings while traveling together in a bus or van.

Takeaways

For most employers, the guidance presents a relief from the regulatory burden of dealing with a COVID-19 ETS. For those employers with 100 percent fully-vaccinated workforces, there is not much left to worry about, OSHA-wise.

Many employers have wondered how legally enforceable the guidance is. OSHA readily admits the guidance consists only of recommendations, “advisory in nature and informational in content, and are intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” This language suggests OSHA cannot cite the guidance as the basis for an OSHA citation, but may attempt to rely upon the guidance to some extent in support of a General Duty Clause violation, under Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970. How’s that working out for OSHA? According to the enforcement data available on the agency’s website, in 2020, OSHA issued citations under the General Duty Clause to only three general industry employers (all in the meat processing industry) . (No data has been made available since January 14, 2021.) All three citations were contested and are currently in litigation before the Occupational Safety and Health Review Commission.

One question remains unanswered: OSHA’s guidance is silent as to how employers must verify employee vaccination status. OSHA’s simultaneously-released COVID-19 ETS for healthcare employers also does not contain any provision that expressly speaks to the issue. But, buried deep on pages 662–63 of the preamble to the ETS, OSHA provides this tidbit of advice:

In order to make the determination of which workers are fully vaccinated, employers could, for example, vaccinate their workforce themselves; review CDC vaccination cards or similar verification issued by a pharmacy, healthcare provider, or other vaccinator; if available, review state-issued passes; or simply ask workers to attest whether they have been fully vaccinated. If the employer is not able to determine that an employee is fully vaccinated, the employer must treat that employee as not fully vaccinated. [Emphasis added.]

It is not clear whether this statement applies to the guidance as well, although one would presume what is good for the more stringent ETS is also good for the not-quite-as-stringent guidance. Ideally, OSHA should clarify this point in a quick update or enforcement guidance, before its inspectors start forming subjective ideas of how employers must verify employee vaccination status.

Overall, the guidance confirms what many commentators have been saying over the past few weeks: The Biden administration is laser-focused on boosting vaccination rates, but does not want to or cannot mandate vaccines. Instead, the administration will do everything it can to incentivize employers to encourage—or better yet in the administration’s eyes—mandate vaccines. By telling employers they have essentially no compliance obligations with regard to vaccinated workers, the administration has done just that.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 162
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About this Author

Melissa Bailey, Ogletree Deakins Law Firm, Occupational Safety Litigation Attorney
Shareholder

Melissa Bailey focuses her practice on occupational safety and health issues, and also serves on the Firm's Board of Directors. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug...

202-263-0265
Dean Kelley, Ogletree Deakins Law Firm, Labor and Employment Attorney
Of Counsel

Exclusively representing employers in matters relating to OSHA and other health and safety laws; the full range of state and federal employment laws including relating to discrimination, retaliation, hostile work environment harassment, interference and wrongful discharge claims under state and federal laws; wage and hour compliance and litigation defense; independent contractor relationships and agreements; employment contracts; restrictive covenants including non-compete, confidentiality, non-solicitation and invention assignment agreements.

414-239-6409
John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
Shareholder

John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

202-263-0267
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