OSHA: Vaccinated Employees Must Continue to Adhere to COVID Protocol

Howard K. KurmanPrincipal, Offit│Kurman

On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety and charged the Secretary of Labor and the Assistant Secretary for the Occupational Safety and Health Administration with essentially 3 directives:

  1. Within 2 weeks of the Order, issue revised guidance to employers on worker safety.
  2. Consider whether emergency COVID-19 temporary standards need to be implemented. If such standards are required, implement the same by March 15, 2021.
  3. Review enforcement efforts by OSHA and “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations…”

In accordance with this Executive Order, on January 29, 2021, OSHA issued an updated Guidance on Mitigating and Preventing to Spread of COVID-19 in the Workplace. The Guidance explicitly reads that it does not create a new legal obligation; however, it does cite to mandatory regulations and health standards. As a reminder, all employers are required to abide by the General Duty Clause, which requires employers to provide workers with a workplace that is free from recognized hazards that are causing or likely to cause death or serious harm.

NOTE: This Guidance includes a new consideration relating to vaccinated employees. In an effort to be efficient, the information regarding vaccinated employees is underlined, italicized and bolded.

THINGS WORKERS NEED TO KNOW

The Guidance begins with considerations that workers need to know about. The Guidance includes 9 bullet points and they boil down to 3 main reminders, which are that workers must (1) maintain social distancing, (2) practice good personal hygiene, and (3) wear face coverings.

The Guidance offers more information regarding face coverings:

  • Workers must wear a face covering with at least “2 layers of tightly woven fabric.” The Guidance cites the latest CDC Guidance on face coverings.
  • Workers who have been vaccinated must continue to wear a face covering because, “it is not known at this time how vaccination affects transmissibility.”

Prudent employers will provide this updated information to their employees. Even more, employers should ensure that their workers have 2 face coverings.

ROLE OF EMPLOYERS IN RESPONDING TO COVID-19

The Guidance goes on to list 16 elements of effective COVID-19 Prevention Programs. Before reading, please take note that most states have their own COVID Orders that meet and usually exceed the below criteria:

1. Assignment of Workplace Coordinator

OSHA recommends assigning a coordinator who will be responsible for handling COVID-19 issues on the employer’s behalf. It is worth noting that the latest Pennsylvania Order, requires employers who are serving the public to have a designated COVID-19 Compliance Officer.

2. Identification of Where and How Workers Might be Exposed to COVID-19 at Work

Employers should conduct a hazard assessment to identify potential workplace hazards. The Guidance further explains that when conducting this assessment, it is useful for employers to involve employees to participate. As OSHA puts it, “[employees] are often the people most familiar with the conditions they face.”

It follows that prudent employers will conduct an assessment of their workspace, and invite and even require some employees to participate in the assessment. It is best practice to document the occurrence of the hazard assessment and any findings.

3. Identification of a Combination of Measures that will Limit the Spread of COVID-19 in the Workplace

Employers should identify measures that will protect workers from COVID-19 hazards.

4. Considerations of Protections for Workers at Higher Risk for Severe Illness Through Supportive Policies and Practices

The Guidance instructs employers to consider reasonable modifications for workers identified as high-risk. According to the Guidance, employers should consider allowing such employees to work at home, less densely-occupied areas, better-ventilated areas or alternate offices.

NOTE: Employers must consider the ADA before identifying employees who they believe to be high risk. Check out my blog on this specific issue.

5. Establishment of a System for Communicating Effectively with Workers

OSHA urges employers to establish a two-way communication system whereby the worker can self-report if they have COVID or have been exposed, and the employer can notify employees of exposures and closures.

6. Educate and Train Workers on COVID-19 Policies and Procedures

Training should be in accessible formats and in the language that the employee understands. OSHA provides the outline for the training and what it should include:

  • COVID Basic Facts
    • How COVID Spreads
    • Social Distancing
    • Use of face coverings
  • Implemented Workplace Policies and Procedures

Even more, OSHA suggests tracking which employees have been educated/trained on COVID. This suggests that prudent employers will have (1) a COVID Policy that is distributed to all workers, (2) some type of COVID-19 training, and (3) a certification from the employee that they received and completed the COVID training. The policy and the related certifications can serve as key documents in defending any COVID related claims.

7. Instruct Workers Who are Infected or Potentially Infected to Stay Home and Isolate or Quarantine
8. Minimize the Negative Impact of Quarantine and Isolation on Workers

Allow employees to telework. Provide paid sick leave. Remember, the FFCRA leave is available through March 31, 2021. Check out my blog on this issue.

9. Isolating Workers Who Show Symptoms at Work

Workers who have symptoms should be sent home immediately.

10. Enhanced Cleaning and Disinfection After People with Suspected or Confirmed COVID-19 Have Been in the Facility

When someone was in the workplace and had a confirmed case of COVID-19, OSHA instructs employers to follow the CDC Guidance for Cleaning and Disinfection.

11. Screening and Testing

OSHA instructs companies to follow state and local guidance for testing and screening in the workplace.

12. Recording and Reporting COVID-19 Infections and Deaths

Employers are required to record work-related cases of COVID-19 in the Form 300 when the following elements are satisfied:

  • The case is a Confirmed Case of COVID-19;
  • The case is work-related;
  • The case involves one or more relevant recording criteria. Section 1904.7 of the regulations provide the following criteria:
    • death,
    • days from work
    • restricted work/transfer to another job
    • medical treatment beyond first aid
    • loss of consciousness,
    • significant injury/illness diagnosed by a physician or other licensed health care professional.
  • Employers must also follow the OSHA requirements when reporting fatalities and hospitalizations.

Employers should consult with counsel regarding reporting COVID-19 cases, hospitalizations and deaths.

13. Implementing Protections from Retaliation

Employers are prohibited from retaliating against employees for raising concerns about COVID-19.

14. Making a COVID-19 Vaccine or Vaccination Series Available at No Cost to All Eligible Employees

OSHA suggests that employers provide education and training on the benefits and the safety of the vaccinations. For more information on vaccines, see my previous blog on the issue.

15. Not Distinguishing Between Workers who are Vaccinated and Those Who are Not

Employees who have been vaccinated must continue to follow the COVID safety protocol of the company. OSHA is clear: There is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

It is imperative that employers educate all employees of this important information.

16. Other Applicable Standards

The Guidance lists the OSHA standards that remain in place and have particular applicability during COVID. These standards relate to:

ADDITIONAL DETAILS

The Guidance provides additional details for employers, and below are the notable considerations:

  • Isolating and Quarantining Employees

The Guidance follows the CDC Guidelines on Isolation/Quarantine for employees who have been diagnosed or exposed to COVID-19.

OSHA makes clear that an employee who had COVID-19 may test positive for three months or more without being contagious to others.

OSHA does NOT recommend employers use the antibody test to determine which workers can work.

  • Improve Ventilation

Employers should look to the ASHRAE Guidance for Building Operations During the COVID-19 Pandemic.

WHAT DOES THIS MEAN FOR EMPLOYERS?

All employers must abide by OSHA Standards. This Guidance does not add any new obligations to employers, however, it is a roadmap for employers to follow. If faced with a COVID-related claim, the OSHA standards will certainly come into play. Employers should use this Guidance as a roadmap for their COVID-19 policies.