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EMPLOYMENT LAW UPDATE

OSHA updates guidance to track the latest CDC mask recommendations

By Mike O’Brien

 The U.S. Occupational Safety and Health Administration (OSHA) has updated its COVID workplace safety guidance entitled, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. OSHA’s latest update on Aug. 13 “reflect[s] the July 27, 2021 Centers for Disease Control and Prevention (CDC) mask and testing recommendations for fully vaccinated people.”

Prior to this update, OSHA had stated that fully vaccinated employees did not need to wear masks and that COVID safety precautions really were focused on protecting only unvaccinated workers. However, that guidance has now changed in response to the highly contagious Delta variant. OSHA’s guidance includes “recommendations,” that do not carry the force of law and “creates no new legal obligations.” Still, OSHA’s counsel likely becomes a standard of reasonableness by which workplace safety practices will be judged.
We’ve summarized a few of OSHA’s new recommendations below and encourage you to carefully review OSHA’s entire updated guidance.

  • “Facilitate employees getting vaccinated,” OSHA recommends that employers provide paid time off for employees to get vaccinated and remind employers that tax credits (for employers with fewer than 500 employees) are available to offset such paid leave through Sept, 30, 2021. OSHA also “suggests that employers consider adopting policies that require workers to get vaccinated or undergo regular COVID-19 testing—in addition to mask-wearing and physical distancing—if they remain unvaccinated.”
  • “Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-Co-V-2, and all workers with COVID-19 symptoms to stay home from work…” OSHA recommends that employers “ensure that absence policies are non-punitive” and to “eliminate or revise policies that encourage workers to come to work sick.”
  • “Implement physical distancing in all communal works areas for unvaccinated and otherwise at-risk workers.” OSHA states that employers should “limit the number of unvaccinated or otherwise at-risk workers in one place at any given time,” by implementing telework, flexible work hours, flexible and remote meeting options, and staggered shifts. At fixed workstations where employees are within 6 feet of other people, employers should provide transparent shields or other solid barriers.
  • “Provide workers with face coverings or surgical masks…” OSHA tracks recent CDC recommendations that “even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission.” OSHA links to the CDC COVID Data Trackermap so that employers may determine if they are in an area of high transmission. OSHA also recommends that employers “provide face coverings to workers who request them at no cost…”

An increasing number of private-sector employers are requiring employees to be vaccinated

National media outlets also are reporting on the increased number of major U.S. corporations that now are requiring vaccines in the workplace. For example, on Aug. 3, 2021, NBC News reported that as “the highly contagious delta variant of the coronavirus continues to strike communities nationwide, companies are stepping up their vaccine requirements, mandating that some or all employees get vaccinated or provide proof of vaccination.” NBC provided a list of employers that now require at least some of their workforce to be vaccinated, including Amtrak, Anthem, Cisco, Citigroup, Delta, Facebook, Ford, Goldman Sachs, Google, Microsoft, Morgan Stanley, NBC Universal, Netflix, Twitter, Tyson Foods, Uber, United Airlines, Walgreens, and the Walt Disney Company, among others. Read the entire list, including each employer’s reasoning, at the following link: NBC News: Here Are the Companies Mandating Vaccines of All or Some Employees.

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