The Occupational Safety and Health Administration (OSHA) recommends employers use “multiple layers of protection,” including mask-wearing, physical distancing, and testing, to safeguard unvaccinated and otherwise at-risk workers and to mitigate the spread of COVID-19.
Multiple layers of protection include facilitating employee vaccination and possibly routine cleaning and disinfection, remote work, quarantine, increased ventilation, staggered break times, staggered departure times, restrictions on visitors and customers, and personal protective equipment (PPE), said Peter Spanos, an attorney with Taylor English Duma in Atlanta.
Employees are entitled to a workplace free of known health and safety hazards under OSHA’s general duty clause, said Mary Leigh Pirtle, an attorney with Bass, Berry & Sims in Nashville, Tenn.
“While this pandemic may feel like it has been going on forever, employers must not succumb to the temptation of letting their guards down and prematurely reducing COVID-19-related safety measures,” said Justin Guilfoyle, an attorney with BakerHostetler in New York City.
Kelly O’Connor, an attorney with Vaughan Baio & Partners in Syracuse, N.Y., said key controls identified by OSHA that employers can enforce to help protect unvaccinated or otherwise at-risk workers include the following:
- Help employees get vaccinated.
- Instruct any infected workers, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms to stay home from work.
- Provide workers with face coverings or surgical masks as appropriate, unless work requires specific PPE.
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
- Suggest or require that unvaccinated customers wear face coverings in public-facing workplaces such as retail establishments and that all customers wear face coverings in public, indoor settings in areas of substantial or high transmission.
- Record and report COVID-19 infections and deaths.
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
- Educate and train workers on the employer’s COVID-19 policies.
Emergency Temporary Standard and Guidance
In June, OSHA issued an emergency temporary standard—applicable to health care employers—that requires covered employers to create a written plan to identify and control COVID-19 workplace hazards. The standard requires nonexempt facilities to conduct a hazard assessment and requires health care employers to provide some employees with N95 respirators or other PPE. OSHA also simultaneously implemented guidance on mitigating and preventing the spread of COVID-19 in the workplace in other industries.
In addition, OSHA’s recent August guidance encourages employers to consider requiring employees to get vaccinated to protect their health and safety and recommends that vaccinated workers in COVID-19 hot spots and high-risk settings wear masks.
“This is guidance, not a final regulation that has the force of law,” said Bryan Keyt, an attorney with Bryan Cave Leighton Paisner in Chicago. “However, as the virus continues to change and spread, in recent weeks we have seen several major employers in the technology, airline, and food delivery space begin to require vaccination by their employees”.
Keyt cautioned that if an employer chooses not to require vaccination and has not taken other appropriate action—such as the implementation of barriers, respiratory protection, and social distancing—that employer could be liable under the general duty clause. “How much heightened OSHA enforcement risk an employer may face will depend on a variety of factors, such as the work industry, nature of the job tasks, the proximity of employees to one another in the workplace, and potential exposure to members of the public,” he said.
Although there is presently no clear authority establishing that failure to follow OSHA or U.S. Centers for Disease Control and Prevention (CDC) guidance violates the general duty clause, “the best current risk-avoidance strategy is to assume that the CDC guidelines and OSHA recommendations are required by the general duty clause,” Spanos said. “It is very likely that OSHA will consider failure to follow its recommendations as a violation of the general duty clause”.
Jonathan Schaefer, an attorney with Robinson+Cole in Hartford, Conn., said that in addition to the risk of violating the general duty clause, employers are facing citations for violation of specific OSHA regulations relative to COVID-19, such as violation of standards related to:
- Respiratory protection.
- Bloodborne pathogens.
OSHA Liability for Vaccination Side Effects?
“Although there is much controversy surrounding COVID-19 vaccines, the chances of employer OSHA liability for employee-side effects from a vaccine are low at this time,” said Katy Willis, an attorney with Burr & Forman in Mobile, Ala.
“This may have been a valid concern earlier in 2021 when OSHA’s enforcement guidance compelled those employers requiring employees to be vaccinated as a condition of employment to record adverse reactions to the vaccine if the adverse reaction met the other recordability criteria,” Schaefer said.
“With the revocation of the old enforcement guidance in May 2021, OSHA distanced itself from appearing to discourage employees from receiving the vaccine or to disincentivize employers’ vaccination efforts. Rather, OSHA indicated it will not enforce the recordability requirements as related to the effects from COVID-19 vaccination—at least through May 2022”.
In addition, liability for side effects from vaccinations is likely to fall under workers’ compensation rather than the Occupational Safety and Health Act, Spanos said. He also said the risk of permanent, serious side effects from one of the vaccines is statistically very low.
Moreover, “employers are not liable for vaccine side effects because the employer does not create, manufacture or administer the vaccine, particularly if employees choose how they will be vaccinated and by whom, or if the employer partners with a third-party health care provider to administer the vaccine,” Spanos said.