OSHA Issues New Employer COVID-19 Guidance Regarding Unvaccinated and At-Risk Workers

The Occupational Safety and Health Administration (OSHA) on June 10, 2021, issued an Emergency Temporary Standard (ETS) to address the current state of the COVID-19 pandemic and its continuing impact on the workplace. The ETS, however, applies only to healthcare and healthcare support service workers. Also on June 10, OSHA issued separate guidance intended to provide clarity to those employers and workers not covered by the ETS. This Holland & Knight alert focuses on the latter, non-ETS guidance, with an upcoming companion alert to focus on the ETS for healthcare and healthcare support service workers.

The ETS and updated guidance follows the Biden Administration's executive order on Jan. 21, 2021, that addressed the health and safety of American workers and directed OSHA to examine the need for revised or additional workplace safety standards as applied to the COVID-19 pandemic. (See previous Holland & Knight alert, "OSHA Update: Biden Administration Signals New Employer COVID-19 Obligations," Feb. 10, 2021.)

General Overview

The non-ETS guidance focuses on protections for unvaccinated and otherwise at-risk workers, while encouraging COVID-19 vaccination and providing links with up-to-date content. The guidance is important for employers to consider, because pursuant to the Occupational Safety and Health Act (the OSH Act), employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. Further, even in the absence of guidance, or a specific OSH Act standard, the OSH Act's General Duty Clause, 29 U.S.C. § 654, 5(a)1, requires employers to "provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm." Employers must be cognizant of dangerous workplace situations and, at times, fill the safety void left by OSHA. Moreover, OSHA and employers can continue relying on existing pre-COVID standards that have applied to workplace hazards posed by COVID-19, such as requirements under the General Duty Clause. (See previous Holland & Knight alert, "COVID-19 OSHA Follow-Up: Agency Updates and Additional Recommended Employer Practices," April 27, 2020.)

In fact, OSHA's recent guidance makes clear that the guidance is not a standard or a regulation and does not create new legal obligations. According to OSHA, the guidance is to "assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace." This language mirrors the requirements of the General Duty Clause. Therefore, following this guidance can help employers ensure that they are meeting their workplace safety obligations.

Vaccinated Employees

OSHA's June 10, 2021, guidance focuses on the vaccinated versus unvaccinated workforce and states clearly that, unless otherwise required by federal, state, local, tribal or territorial laws or regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Placing strong importance on the protections afforded by vaccines and to vaccinated individuals, the recommended steps outlined in OSHA's recent guidance apply only to unvaccinated or otherwise at-risk workers.

At-Risk Workers

While the definition of "unvaccinated worker" is rather straightforward and defined by the U.S. Centers for Disease Control and Prevention (CDC) to mean "any worker who is not yet two weeks removed from their final vaccination shot", the definition of "at-risk worker" is less clear and seemingly can include individuals who have received vaccinations. For example, employees who have received a vaccine may still qualify as "at-risk" due to a poor immune response. Some conditions, such as a prior transplant, as well as prolonged use of corticosteroids or other immune-weakening medications, may affect workers' ability to have a full immune response to vaccination. Accordingly, employers should consider taking steps to protect any employees who raise personal safety concerns just as they would unvaccinated workers, regardless of their vaccination status.

Steps to Protect Unvaccinated and At-Risk Workers

OSHA recommends implementing multiple layers of controls to protect the workplace. Key controls identified by OSHA to help protect unvaccinated or otherwise at-risk workers include:

1. ensuring that all workers infected with COVID-19, those experiencing symptoms and unvaccinated workers with close contact of a person with a confirmed case of COVID-19 are separated from the workplace
2. physical distancing of unvaccinated and at-risk workers in communal work areas
3. maintaining ventilation systems
4. continuing to mandate face coverings or other personal protective equipment (PPE) for employees and suggest the same for customers, visitors and guests
5. granting paid time off for workers to get vaccinated
6. performing routine cleaning and disinfection
7. educating and training workers on COVID-19 policies and procedures
8. implementing strong anti-retaliation policies for workers to voice concerns about COVID-19-related hazards
9. recording and reporting COVID-19 infections and deaths if such infections are work-related

Adverse Vaccine Reactions

Some employers have raised the following question: If the employer suggests and/or mandates that employees receive the vaccine and then they suffer an adverse reaction, does the employer have to record or report that adverse vaccine reaction to OSHA? OSHA's guidance addresses this question and conclusively states that employers do not have to report any vaccine side effects through May 2022. However, employees may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.

Fully Vaccinated Workforce

In the event that 100 percent of employees are fully vaccinated against COVID-19, OSHA's recent guidance states that employers (other than those covered by the ETS and mask requirements for public transportation) no longer have to protect their workers from COVID-19 exposure in any workplace. Importantly, however, this applies only if the entire workforce is vaccinated. Employers should not overlook OSHA's June 10, 2021 guidance stating that if a vaccinated but at-risk worker exists in a fully vaccinated work force, employers must take protective measures to protect the at-risk worker(s).

Next Steps

It is not anticipated that OSHA will issue additional guidance in the near-term due to the comprehensive nature of the ETS and the long-term perspective of the non-ETS guidance. However, Holland & Knight will continue to monitor OSHA publications for additional guidance, directives or supplements. If you have any questions about the contents of this article, please contact the authors or another member of Holland & Knight's OSHA and Workplace Safety Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.