Well over a year into the COVID-19 pandemic, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued an emergency standard related to COVID-19…but it only applies to certain healthcare workers. OSHA standards set the minimum measures employers are required to utilize to protect employees from a known hazard in the workplace. While typically OSHA standards are subject to the rulemaking process, which requires public comment periods and typically takes at least a year, OSHA has the authority to implement an emergency standard which becomes effective immediately when a “grave danger” exists.
The emergency standard requires different protections for employees based on vaccination status. Employees who are fully vaccinated and unlikely to encounter someone who is COVID-19 positive or who is unvaccinated may return to pre-COVID-19 conditions, including foregoing the use of a face mask. However, unvaccinated employees or employees likely to encounter unvaccinated individuals, including patients and visitors, must continue social distancing and mask use.
The standard also requires employers to provide face masks to employees who are unvaccinated or may encounter unvaccinated individuals. Healthcare institutions also are required to screen and triage patients for COVID-19, utilize increased ventilation systems, and enforce social distancing. Finally, the standard requires employers to provide paid time off for employees to get vaccinated and to recover from any side effects of the vaccine.
Despite the small scope of the standard, OSHA believes it will protect 10.3 million employees in the healthcare industry. Having said that, the standard applies to emergency and acute care facilities and nursing homes, but not to other medical providers like dentists who are unlikely to come into contact with individuals with COVID-19.
While it has been questioned whether the pandemic is still a “grave danger” as required for OSHA to issue an emergency standard, given the uniquely high risk COVID-19 presents to healthcare workers, OSHA may have a stronger justification to issue an emergency standard related only to this field.
Although the emergency standard only applies to the healthcare industry, employers can expect that the ease of restrictions for fully vaccinated individuals who are unlikely to encounter COVID-19 positive individuals or unvaccinated individuals will likely apply in non-healthcare workplaces as well. In fact, OSHA updated its guidance – which is applicable to all employers – and advises employers that in determining whether social distancing and mask use are necessary, the key factor is whether the employees are or are not vaccinated.
Additionally, the new OSHA guidance urges all employers to strongly recommend vaccinations for employees and to provide paid leave to obtain vaccinations and recover from any side effects. Essentially, the new OSHA guidance recommends that all employers adopt the healthcare emergency standard. The difference is that in the healthcare setting, OSHA has informed employers of the minimum efforts they must take by adopting a standard, while it merely advises other employers of the minimum efforts they should take.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.