In the strongest language issued on the subject to date, on August 13, 2021, OSHA revised its COVID guidance for employers (“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”) and “suggest[ed] that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Since COVID vaccines became widely available, employers have been weighing whether to implement a COVID vaccination requirement for employees (whether to enter the workplace or to remain employed).  While not having the same force and effect as a regulation, published OSHA guidance is a meaningful and important indicator of what the federal safety watchdog considers to be appropriate employer action.  For those employers who were looking for that nudge to convince them to implement a policy requiring vaccination, this revised guidance may just be that nudge.

As we discussed in previous blog posts (Coronavirus (US): Key vaccination issues for employers – Part 1, Part 2, and Part 3) on the subject, when implementing a mandatory vaccination policy, employers must, among other legal considerations:

·       take into account any new (and proposed) state laws which restrict an employer’s ability to require vaccination;

·       take into account accommodation requests based upon disability;

·       take into account accommodation requests based upon sincerely held religious beliefs; and

·       take into account other protected reasons which may prevent an employee from receiving a vaccine.

In addition to the suggestion that employers consider requiring vaccination, the revised guidance also aligns with recent guidance from the CDC regarding masking and distancing depending on vaccinated status, noting that unvaccinated individuals should continue to mask and physically distance from others, and OSHA adds that employers should consider policies that require the unvaccinated to undergo regular COVID-19 testing if they remain unvaccinated.  OSHA further recommends that all employees, even those who are fully vaccinated, wear masks in areas of substantial or high community transmission to protect unvaccinated workers.

BCLP recommends that employers consult with counsel when drafting and implementing a mandatory vaccination policy, and that state legislative action regarding vaccination be carefully monitored following implementation, because states continue to consider and propose legislation in this space.

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