Covid-19 Is Not Going Away, and Neither Are Workplace Safety Concerns

With Covid-19 cases rising across the country again, employers are navigating a new set of challenges when it comes to protecting employee health and safety—among them, ever-evolving workplace safety recommendations from government regulators.

Most recently, and in response to the latest Covid-19 spike, the federal Occupational Safety and Health Administration (OSHA) issued updated guidance for employers on avoiding the spread of the virus. Based on the rise of the delta variant, OSHA’s revised guidance—“Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace”—embraces the Centers for Disease Control’s (CDC’s) recently updated recommendations, which includes advice that fully vaccinated people wear masks in public indoor settings in geographical areas with substantial or high transmission rates.

But from mask mandates to vaccinations, the updated recommendations have left many employers with lingering questions. Here are a few of the most common:

1. Does OSHA’s guidance mandate workplace masking, including for fully vaccinated people?

No, it does not. The guidance is not binding, which means it does not have the force of law or regulation. The guidance does, however, reflect OSHA’s view that employers must continue to act to keep workplaces safe. In June 2021, OSHA issued a binding Emergency Temporary Standard (ETS) for healthcare and related employers only.

2. Does the updated guidance state that employers should continue or re-institute workplace masking, including for fully vaccinated people?

In general terms, yes, especially in higher-risk workplaces and workplaces in areas designated by the CDC as areas of substantial or high transmission. The guidance states very generally in its executive summary: “Fully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside.” The guidance is clearer regarding workplace-wide mask mandates in “higher-risk workplaces” and areas of substantial or high transmission such as manufacturing facilities, meat and poultry plants, high-volume retail and grocery stores, and seafood processing plants.

3. Who are “at-risk workers,” and what does the updated guidance say about protecting them?

Based on CDC guidance, OSHA acknowledges that people with weakened immune systems may not be fully protected by vaccinations. The guidance reflects that employers should take additional steps to protect these workers, including requiring them to wear masks “whenever possible.” The guidance is the same for workers who are not fully vaccinated.

4. Does the guidance contain safety recommendations in addition to those related to masking?

Yes, it does. Key recommendations include:

• Encouraging vaccination or requiring workers to undergo regular testing;
• Providing paid time off (PTO) for workers to get vaccinated;
• Requiring fully vaccinated workers to get tested three to five days following exposure to known or suspected Covid-19 cases and to wear a mask in public indoor settings for 14 days after exposure (or until a negative test result); and
• Requiring unvaccinated workers to stay home if they have had close contact with Covid-19 cases and have not tested negative immediately if symptoms develop.

5. Are there questions the guidance leaves unanswered?

 Yes, there are quite a few. The most significant include:

• While the guidance embraces the CDC recommendations on masking, it does so very generally, and it does not provide details or examples that would be helpful to employers considering whether to re-institute workforce-wide masking mandates in specific situations. For example, when OSHA states that fully vaccinated people in areas of substantial or high transmission should wear masks “indoors,” is it saying that they should do so even when alone in a private office with a door? What about in a cubicle or while working at a workstation that is over six feet away from the next closest workstation?

• The guidance also is silent with respect to an issue of potentially substantial legal importance: If the safety measures that employers should implement to keep workers safe from Covid-19 are based, in part, on the presence of “at-risk workers” in the workplace, how is an employer to determine which workers have weakened immune systems? Disability-related inquiries by employers are, of course, strictly regulated by the Americans with Disabilities Act (ADA) and analogous state law, and these laws continue to apply even in light of  the pandemic.

The Bottom Line for Employers

OSHA’s updated guidance is a reminder that the pandemic remains a dynamic situation and developments are not always possible to predict. While the guidance is not binding, it reflects OSHA’s position on the protocols necessary to protect workers from Covid-19. Employers should carefully review the guidance and, after considering it in light of the specific circumstances presented in the workplace, determine how to implement it.

The dangerous new spike in Covid cases has many employers now considering an array of options for limiting the risk of Covid-19 exposure in the workplace. In addition to considering updated masking protocols, many businesses have recently begun to consider or implement other or more of the following:

• Vaccine mandates;
• Remote work arrangements for unvaccinated workers;
• Regular testing for unvaccinated workers who are permitted in the workplace; and/or
• Requiring proof of vaccination rather than reliance on the “honor system.”

Mike Muskat, Michelle Mahony, and Corey Devine are partners at Muskat, Mahony & Devine, a management-side labor and employment law firm in Houston. More information about Mike, Michelle, and Corey can be found at www.m2dlaw.com.

From: Texas Lawyer