On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety directing the Assistant Secretary of Labor for Occupational Safety and Health to issue science-based guidance for employers to assist in protecting workers from COVID-19. In response, OSHA issued updated guidance for employers on January 29, 2021. The guidance, which is “advisory in nature” and does not create new standards, regulations, or legal obligations, largely focuses on practices that have become commonplace over the past 10 months: maintaining social distance, wearing face coverings, practicing good hygiene, and disinfecting regularly. However, the new guidance also recommends new practices to help maximize the effectiveness of procedures that are employers are likely already using. A more thorough outline and overview of the new guidance can be found on the Butler Snow Hub here.
The guidance provides sixteen enumerated elements for the “most effective” workplace COVID-19 prevention programs. In addition to addressing safety protocols such as isolating employees with symptoms at work, cleaning and disinfection practices, training, screening and testing, and recording and reporting cases, these best practices include items less routinely associated with workplace safety, namely vaccines and absence policies.
Since the roll-out of the vaccines, many employers have been evaluating the best way to encourage or even mandate that their workforce gets vaccinated. While the EEOC has clarified that it will allow mandatory vaccine policies (subject to exceptions for medical and religious objections), many have worried about the risks of requiring vaccines under other federal and various state laws. In fact, many have questioned whether requiring this vaccine could present potential workplace safety issues itself, given the emergency use authorization status. The new guidance does not recommend, or even address mandatory vaccination. It does, however, encourage employers to both offer the vaccine to employees at no cost and to provide “information and training on the benefits and safety of vaccinations.”
Additionally, the guidance states that once employees begin receiving the vaccine, employers should not treat employees who are vaccinated differently than employees who are not. On its face, this suggestion addresses the fact that research has not shown whether and to what extent vaccinated people can still transmit COVID-19. Therefore, while vaccinated employees may be at less risk of catching COVID-19, they should still follow masking and distancing rules to slow the spread to others. However, many employers are encouraging vaccinations by implementing rules that vaccines are required to enter certain workspaces or events. Employers should be wary of these incentives under this guidance unless still requiring all other safety measures, such as masks and distancing, even where all are vaccinated.
Another hot topic addressed in the guidance is absence and paid leave policies. The guidance encourages employers to “[e]nsure that absence policies are non-punitive” and to allow employees to use paid sick leave to encourage sick and exposed individuals to quarantine to reduce the risk of transmission. Policies that encourage workers to come to work with symptoms out of fear of termination or loss of pay are potential workplace safety hazards. This is important in the wake of the expiration of the Families First Coronavirus Response Act (FFCRA). The FFCRA, which required two weeks of paid leave for certain individuals testing positive or under isolation orders, expired on December 31, 2021. Employees no longer have a right to this leave. However, the Consolidated Appropriations Act (CAA) extended the employer tax credits for FFCRA-qualifying leave voluntarily provided by employers through March 31, 2021. In fact, the OSHA guidance specifically references this extended tax credit when encouraging employers to implement paid sick leave policies covering COVID-related absences. So, while leave is no longer required under the FFCRA, employers who chose to forgo paid leave for employees absent due to COVID-19 may have more of an uphill battle to defend the safety of their workplace, should OSHA question it. And, at least until March 31, 2021, the cost of providing this leave may provide little defense.
Finally, the guidance reminds employers that OSHA prohibits discharging or discriminating against employees who voice concerns about workplace safety, including COVID-19 related hazards. The guidance encourages setting up a clear procedure for raising concerns, including appointing a point-person and/or using a hotline or other anonymous reporting system. This guidance does not excuse employees from job duties due to general concerns with contracting COVID-19. However, employers should be careful when disciplining or terminating an employee if that employee has voiced reasonable concerns over certain practices or lack of safety measures related to the virus. Comments one may construe as excuses to get out of work could potentially be protected action under OSHA, and disciplinary action could put you in hot water. Employers should carefully evaluate these decisions and seek guidance if there is any possibility the employee could claim a termination was retaliatory.
It should be noted that President Biden also directed the Assistant Secretary to, on or before March 15, 2021, issue any necessary emergency temporary standard (ETS). He further ordered the Assistant Secretary to launch a national program to focus OSHA efforts on violations that put the largest number of works at serious risk for contracting COVID-19, or that are contrary to anti-retaliation principles. If and when these standards and programs are implemented, Butler Snow will once again highlight the important points and direct you to any updated guidance.