OSHA and the EEOC have recently released updated COVID-19 protocols following the CDC’s guidelines toward vaccinated individuals working in the healthcare industry.  The first portion of this article discusses OSHA’s COVID-19 Healthcare Emergency Temporary Standard (the “ETS”) and the second portion discusses the subsequent guidance for employers related to the ETS and also to workplaces in general.  It is important for employers to recognize that even though vaccinated individuals are no longer required to follow social distancing protocols in public, each employer should take an individualized approach to determine what works best in its office while also following state and federal guidelines.

OSHA’s COVID-19 Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued the ETS which targeted healthcare settings where COVID-19 patients are treated.  

The ETS provides that:

• Fully vaccinated individuals are no longer required to wear a mask, social distance, or maintain barrier requirements when the employer determines there is no reasonable expectation of the presence of individuals suspected or confirmed with COVID-19;
• Health care employers with more than 10 employees will be required to develop and implement written COVID-19 plans.  Such plans require procedures such as assigning a safety coordinator for compliance, a workplace specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, patient screening and management, PPE requirements, physically distancing indoors, and more, at no cost to the employee.

As for employers outside of the healthcare industry, most are no longer legally required to take steps to protect their workers from COVID-19 exposure in any workplace where all employees are fully vaccinated.  Instead, the broad guidance below provides OSHA’s baseline recommendations for all workplaces, especially for the unvaccinated and at-risk employees. 

Unvaccinated and At-Risk Employees

The designation “at-risk” has been intentionally left broad by OSHA.  It includes those who cannot get the vaccine or wear masks for disability reasons, and also includes employees who take immune-weakening medication that might make them more susceptible to COVID-19.  If there are unvaccinated or at-risk employees in your workplace, here is what OSHA recommends:

• Grant paid time off for employees to get vaccinated;
• Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work;
• Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
• Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
• Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand;
• Suggest that unvaccinated customers, visitors, or guests wear face coverings;
• Maintain workplace ventilation systems;
• 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; and
• Continue to follow other state and federal guidance regarding workplace safety.

Conclusion

Overall, the new guidelines are a cautious approach to a return to normal while at the same time recognizing some individuals and workplaces will still require certain safety precautions and protection.  As a result, it may be better for some employers to err on the side of caution as these new situations arise in the workplace and continue to adapt as the circumstances continue to change.  Managing accommodations on a case-by-case basis and ensuring the safety of the employees and customers continues to be the priority.  If you have any questions about implementing workplace policies and practices, please do not hesitate to contact your Cranfill Sumner LLP (CSH Law) attorney.

This article was prepared with the assistance of one of CSH Law’s summer clerks, Nehemias Hernandez-Lopez.  Nehemias is a second-year law student at North Carolina Central University School of Law.