On May 26, 2021, we told our readers that we thought that although an “emergency” no longer existed about OSHA’s need to regulate employers’ handling of the COVID-19 virus, OSHA would nonetheless still issue an emergency temporary standard (ETS) due to immense political pressure on the Department of Labor (DOL) from numerous labor organizations and other “workplace safety” advocacy groups. We also stated in our earlier blog that we believe that any ETS issued would most likely address the exposure risks and hazards faced by employees and employers in the healthcare industry. Well, yesterday, that prediction came true as OSHA finally issued its “emergency” standard despite overwhelming evidence that the “grave danger” required by the Occupational Safety and Health Act to allow the DOL to issue a temporary emergency standard no longer exists.
Emphasis on Vaccinated Employees
Recognizing that any ETS that extended to employers beyond healthcare had a zero chance of surviving the judicial challenge, the ETS announced by OSHA yesterday applies only to workplaces where employees provide “healthcare services or healthcare support services.” In an apparent acknowledgment that some employers will struggle to determine whether they are such a “workplace,” OSHA provided, along with the text of the ETS, a “flowchart” for employers to navigate in an attempt to conclude whether their specific “workplace” is included. Already, in one day, we have had inquiries from some employers in healthcare support services asking for guidance on these coverage issues, which, interestingly, depend not on what services the employer might provide, but instead, on such factors as whether all employees at the worksite are “fully vaccinated” or all non-employees are “screened” before entry.
As we accurately guessed in the prior blog post, the ETS does not include many burdensome provisions in the current (yet ever-changing) CAL/OSHA ETS. For example, the new federal ETS mandates the following of covered employers:
- To conduct a hazard assessment and implement a COVID-19 plan for each workplace and designate a workplace “coordinator” to ensure compliance with that plan;
- To screen and triage patients, clients, and other visitors for symptoms of COVID-19 before entering the workplace;
- To provide and ensure employees wear face masks when indoors and when occupying a vehicle with other people while working;
- To provide respirators and other PPE for employees exposed to others with suspected or confirmed COVID-19 virus;
- To allow for the voluntary use of respirators instead of face masks (under what OSHA is calling its “mini respiratory protection program”);
- To notify certain employees if a person who has been in the workplace is COVID-19 positive;
- To remove employees who have suspected or confirmed COVID-19 symptoms and, in some cases, provide pay and benefits to those employees up to $1,400 per week (reductions to that amount for employers with fewer than 500 employees);
- To provide reasonable time and paid leave for vaccinations and vaccine side effects;
- To train employees on workplace policies and procedures regarding COVID-19;
- To maintain existing ventilation systems;
- To perform routine cleaning and disinfection;
- To set up an anonymous internal process for employees to complain about COVID-19 hazards;
- To implement protections against retaliation; and
- To record all employee cases of COVID-19 on a “COVID-19 log” without regard to occupational exposure.
New Guidance Focuses Entirely on Vaccinated Employees
OSHA recognized that limiting its ETS to only healthcare settings would be a great disappointment to those who hoped these mandates would apply to other workplaces.
As a result, OSHA decided to issue updated guidance to “help employers and workers not covered by the ETS.” This new guidance focuses almost exclusively on the “protection” of unvaccinated or otherwise at-risk workers. Essentially, OSHA tells employees who are not vaccinated to get vaccinated or wear a face covering their nose and mouth and practice social distancing from other people. At the same time over, OSHA tells employers to: provide paid time off for employees to get vaccinated; provide free face coverings or respirators to unvaccinated employees; implement physical distancing requirements for unvaccinated workers; and train and educate workers on COVID-19 policies.
Because OSHA has no actual ability to regulate employers’ customers, in the guidance, OSHA suggests that employers’ unvaccinated customers, visitors, or guests be required to wear face masks, but says nothing about asking about vaccinated status due to the numerous state and local laws prohibiting such inquiries.
However, the guidance is entirely silent on the actual issue facing many of America’s employers: should I ask my employees if they are fully vaccinated and, if they say yes, should I then require verification from the employees? Instead, the guidance assumes that employers will know somehow which of their employees are not vaccinated.
This entire focus on the vaccinated vs. unvaccinated worker in the updated guidance ignores three important realities that many employers confront regarding employees’ willingness to receive the vaccination. That failure will make compliance difficult for many employers.
First, the guidance appears to assume that by simply encouraging workers to get vaccinated through paid time off and requiring mask-wearing and social distancing if they fail to get “the shot,” that these vaccination-resistant employees will somehow miraculously change their position on receiving a vaccination. The announcement yesterday by the CDC that an emergency meeting is being held to discuss the “rare” reports of certain individuals suffering from heart inflammation after receiving doses of the vaccine will certainly not help convince these workers to change their minds.
Second, the guidance ignores the reality that many workers believe that they do not need the vaccine if they have natural immunity by already having the virus. According to one professor at the Johns Hopkins School of Medicine, it is estimated that somewhere between 40-60% of American’s likely have had the virus and thus have antibodies providing natural immunity.
Third, and finally, the guidance ignores the fact that even if employers ask their employees if they are vaccinated, if they do not also require verification of that vaccination (a policy being followed currently by numerous major employers in retail and other industries), those employees may eventually misrepresent their vaccinated status, to avoid wearing masks and practicing social distancing, especially since the customers and visitors in most workplaces and their vaccinated co-workers will not being wearing face coverings. While in the preamble to the ETS, OSHA provided certain suggestions as to how an employer might find out if its employees are vaccinated to comply with the ETS, e.g., small employers may find out if it is “a topic of conversation,” as with its ETS, however, OSHA provides no real direction in its guidance on this critical issue of attestation or verification.
Not asking for Attestation or Verification of Vaccinated Status Could Lead to a Potential General Duty Clause Citation
In sum, this updated guidance presents no direct answer to the question facing many of our clients currently. For example, if I ask my employees if they are vaccinated and I don’t ask for attestation or written verification but, instead, follow the so-called “honor system,” will my non-healthcare industry company be subject to a General Duty Clause citation by OSHA if one of my employees contacts the virus at work? OSHA may contend that I knew or should have known, some of my employees had misrepresented their vaccination status.
We believe that given the current COVID-19 National Emphasis Program and the pressure on the DOL to demonstrate strong enforcement in this area, non-healthcare employers may very well be subject to such a citation under those circumstances and should act accordingly.
Rest assured that the Cozen O’Connor OSHA/Workplace Safety practice group will keep you informed and let you know immediately if OSHA ever updates its current guidance to deal with this significant issue.