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In brief

The United States Department of Labor, Occupational Safety and Health Administration (OSHA) has decided to sing the same song as its sister agency. Last Friday, 13 August, OSHA updated its guidance for American workplaces, auto-tuning its recommendations for fully vaccinated employees to match recent guidance issued by the Centers for Disease Control and Prevention (CDC).


In depth

Specifically, on the topic of workplace vaccination, OSHA now “suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

In so doing, OSHA joins the growing ensemble of government agencies recommending vaccine mandates, while public and private employers rush to require their workers to get vaccinated or undergo regular testing. (For details on this momentum, read more here or watch our video chat here.)

Additional Recommendations

OSHA updated its guidance to help employers and workers not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at risk even if fully vaccinated (e.g., immunocompromised individuals).

The guidance encourages employers to engage with workers and their representatives to determine how to implement multi-layered intervention strategies to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

  • Encouraging and facilitating employees to get vaccinated by providing paid time off, working with local agencies to offer vaccination clinics in the workplace, and adopting policies that mandate employee vaccination.
  • Instructing infected workers, unvaccinated workers who have had close contact with a positive COVID-91 case, and all workers with COVID-19 symptoms to stay home from work.
  • Implementing physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
  • Providing workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission.
  • Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.
  • Recording and reporting COVID-19 infections and deaths, in compliance with mandatory OSHA rules.
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 related hazards.

Takeaways

While OSHA’s guidance is advisory, and not mandatory, employers would be wary of that siren song. Keeping the beat with recommended health and safety guidance, even when not compelled, puts employers in the best position to protect their people and defend against claims.

For help developing your return to office plans, please contact your Baker McKenzie employment lawyer.

Author

Susan Eandi is the head of Baker McKenzie's Global Employment and Labor Law practice group for North America, and chair of the California Labor & Employment practice group. She speaks regularly for organizations including ACC, Bloomberg, and M&A Counsel. Susan has been published extensively in various external legal publications in addition to handbooks/magazines published by the Firm. Susan has been recognized as a leader in employment law by The Daily Journal, Legal 500, PLC and is a Chambers ranked attorney.

Author

Robin Samuel is a partner in the Employment Practice Group of Baker McKenzie's Los Angeles office. Robin helps clients manage and resolve local and cross-border employment issues, whether through counseling or litigation. He advises clients on virtually all aspects of the employment relationship, including hiring and firing, wage and hour, discrimination, harassment, contract disputes, restrictive covenants, employee raiding, and trade secret matters. Clients trust Robin to handle their most sensitive and complex employment issues.

Author

Caroline Burnett is a Professional Support Lawyer in Baker McKenzie's San Francisco office.

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