By Debra S. Friedman
On Aug. 13, 2021, the Occupational Safety and Health Administration (OSHA) issued updated COVID-19 guidance for nonhealthcare employers and employees, again causing employers to reevaluate their return-to-work policies and procedures. OSHA, following the lead of the Centers for Disease Control and Prevention (CDC), now recommends that employers consider requiring employees to receive the COVID-19 vaccine or submit to regular COVID-19 testing, and also recommends that all employees, regardless of vaccination status, wear masks in public indoor settings in areas of substantial or high transmission. OSHA offers more restrictive masking recommendations for workers in higher-risk workplaces, such as processing plants, high-volume grocery and retail stores, and manufacturing facilities.
Determining Vaccination Status
OSHA’s new guidance, coupled with the Pfizer vaccine receiving full approval from the Food and Drug Administration (FDA), has businesses reevaluating workplace policy changes. Until recently, businesses have largely adopted three approaches to inquiring about employee vaccination status.
Don’t Ask/Don’t Tell – These employers have announced that vaccinated employees are relieved from continued COVID protocols, but largely rely on the honor system. Those in this category point to privacy concerns as a basis for not requesting proof of vaccination status or operate in a state with state law protections (Montana, for example).
Soft Enforcement – Employers in this category don’t actively police COVID protocol compliance for unvaccinated workers, but they will investigate complaints and require proof of vaccination if a question arises regarding adherence to company policy.
Strict Enforcement ‒ Some states and localities (Oregon, for example) require employers to verify employee vaccination status as a prerequisite to allowing the cessation of COVID precautions in the workplace. Other employers have voluntarily implemented strict policies requiring employees to provide proof of vaccination before discontinuing workplace COVID protocols.
Notably, the OSHA guidelines do not require an employer to delve into an employee’s vaccination status. An employer may simply require its employees to continue to comply with COVID protocols until they voluntarily provide proof of vaccination. As a practical matter, however, the updated OSHA guidelines increasingly create a real enforcement problem for large employers who are now expected to maintain two sets of safety rules depending upon employee vaccination status. Continuing a “Don’t Ask/Don’t Tell” policy in light of the new OSHA guidelines carries a risk that OSHA will decide that more is required. The guidelines are not authoritative, but employers would be wise to make a good faith effort to ensure that unvaccinated workers are continuing to follow recommended COVID protocols. At minimum, this would include requiring workers to offer some type of proof/attestation of vaccination before being relieved of heightened COVID-related public health protocols. The Equal Employment Opportunity Commission has made clear that such inquiries are lawful, as long as the information is treated as confidential under Americans with Disabilities Act privacy requirements and only shared with persons who have a business need to know the information.
Are Mandatory Vaccination Policies Becoming More Popular?
Many employers eager to get back to a normal workplace are mandating that their workers be fully vaccinated within the next few months, absent approved religious or medical accommodation requests. More employers also are requiring unvaccinated workers to wear a mask, socially distance, and submit to periodic COVID-19 testing.
Given the changing landscape, at least for now, fully vaccinated workplaces will have an advantage managing compliance obligations. In a mixed workplace, for example, management would presumably need to confirm that employees congregating maskless in a lunchroom or meeting space are all vaccinated or risk running afoul of the OSHA guidance. This enforcement effort clearly is much easier in a workplace where all or most workers are vaccinated.
Note: the OSHA guidelines do not have an expiration date. It is not clear how long OSHA will expect employers to enforce mask and distancing requirements for unvaccinated workers, and for all workers regardless of vaccination status in areas of substantial or high transmission. It also is not clear whether OSHA will follow directives from the CDC or other authorities to the extent these requirements are lifted for the unvaccinated. Should conditions improve, employers will face mounting pressure to relieve safety protocols, even on unvaccinated workers.
The takeaway for employers from the OSHA guidance and the FDA’s full approval of the Pfizer vaccine is the urgent need to develop and communicate plans for vaccinated and unvaccinated worker protocols in the workplace. Employers also should address protocols for visitors and customers who come into the workplace. Finally, employers should consider gathering information on employee vaccination status and requiring employees to get vaccinated, absent a religious or medical accommodation.
Debra S. Friedman is a labor and employment attorney at Cozen O’Connor in Philadelphia. She can be reached at firstname.lastname@example.org.
This blog post is intended for general knowledge and does not constitute legal advice.
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