Only months after issuing guidance excusing most employers (outside of the healthcare and transportation industries) from taking steps to protect their workforce from COVID-19 exposure, the Department of Labor’s (“DOL”) Occupational Health and Safety Administration (“OSHA”) seemingly backtracked. Based on increased risks associated with the Delta variant of the virus and updated direction from the Centers For Disease Control and Prevention (“CDC”), OSHA updated its prior COVID-19 safety guidelines on August 13, 2021 (“OSHA’s Update”). We address what OSHA’s Update provides; its legal/regulatory impact; and its impact on employers generally.
What OSHA’s Update Provides
OSHA’s Update discusses how employers should engage with workers who are either: (1) unvaccinated or otherwise at risk (e.g., immunocompromised), or (2) vaccinated but located in areas with substantial or high virus transmission rates. To this end, OSHA offered the following suggestions for employers:
What’s the Impact of OSHA’s Update?
OSHA’s Update is neither an enforceable regulation nor a new legal obligation. Instead, OSHA’s Update is intended to be analogous to and harmonious with the CDC’s recent updated guidance. The CDC’s recent guidance recommended that:
What OSHA’s Update Means for Employers
COVID 19’s Delta variant (and future expected variants) undoubtedly has and will affect workplace safety. This “new normal” will likely involve evolving workplace strategies in favor of virus mitigation to protect workers. While employers must comply with legal requirements (both those requiring virus mitigation strategies and those prohibiting them), we recognize the operational and morale difficulties arising from implementing “recommended” COVID-19 guidance. These difficulties are complicated by serious considerations like varying vaccinated workforce populations, high positivity rate states, high customer/client interactions, different state and local laws, and even high-risk industries requiring additional protections. Prudent employers should consider guidance as a whole (whether from federal, state and/or local governments) and their own operations before reacting to any particular update. Even when virus positivity rates improve, employers should still weigh the cost of changing virus mitigation strategies together with the likelihood of confusing the workforce with constant policy changes.
If you have any questions regarding your organization’s obligations or rights to go beyond recommended guidance, please reach out to the Lawrence & Bundy attorneys with whom you work.
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