The Centers for Disease Control and Prevention (CDC) has offered new COVID-19 guidance indicating that fully vaccinated individuals no longer need to wear masks or maintain physical distance from others in most settings. However, questions about employers’ compliance obligations and general duty expectations under the Occupational Safety and Health Act of 1970 (OSH Act) remain. For example, the CDC guidance conflicts with guidance from the Occupational Safety and Health Administration (OSHA), published in January 2021, that prohibits employers from distinguishing between workers who are and are not vaccinated.

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Since the Centers for Disease Control and Prevention (CDC) offered new COVID-19 guidance allowing fully vaccinated individuals to avoid wearing masks or socially distancing in most settings, employers have been pushing the Occupational Safety and Health Administration (OSHA) and state equivalents to embrace the change, but change is slow.

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On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

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As the federal government and state of California adjusted their COVID-19 guidance for vaccinated individuals, Cal OSHA remained silent on how vaccination affected the requirements under its COVID-19 Emergency Temporary Standard (ETS). While there had been discussions of revisions to the ETS, it was unclear if Cal OSHA would be able to release such revisions prior to the targeted reopening of California by June 15, 2021.

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The Occupational Safety and Health Administration (OSHA) has determined that it will consider an adverse reaction to the COVID-19 vaccine a “work-related” recordable illness if an employee is required to take the vaccine as a condition of employment.

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Frustrated by constantly shifting guidance and shortages of respirators and other personal protective equipment experienced in 2020, employers are rejecting Occupational Safety and Health Administration (OSHA) citations for COVID-19 infractions and contesting them like never before.

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The Occupational Safety and Health Administration (OSHA) was directed under an executive order to promulgate an Emergency Temporary Standard (ETS) to address COVID-19 no later than March 15, 2021. It has yet to do so.

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The coronavirus (“COVID-19”) pandemic has continued to evolve, with COVID-19 cases declining in some areas and vaccinations being rolled out in phases by local public health authorities. Yet widespread vaccinations are not expected to be in place until later in 2021, with many Americans not having access to vaccines until May or June at the earliest. Even so, some states view the evolving circumstances as sufficient to lift restrictions and start returning to “normal.” Mississippi and Texas, for example, have recently lifted mandated requirements on state residents to wear cloth face coverings, capacity limitations on businesses, and other COVID-19 related restrictions. Other states, such as Idaho, Nebraska, and Oklahoma implemented COVID-19 restrictions, but did not go so far as to require residents to wear cloth face coverings or masks while in public. While a majority of states still have mask mandate laws, the inconsistency and changing requirements in COVID-19 restrictions continues to pose challenges for employers in determining how to provide a safe work environment. Employers must also carefully balance workplace safety considerations with workplace cultures, polarized viewpoints, and continually changing dynamics.

As states continue to modify and rescind COVID-19 executive orders and restrictions, employers also need to remember that they may have ongoing obligations under other federal or state laws. From a federal level, employers are currently subject to the General Duty Clause in the Occupational Safety and Health Act (“OSH Act”), which requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. For this reason, employers generally need to evaluate COVID-19 hazards in their workplace and implement responsive preventive controls, even if there is no standing executive order compelling this action. To satisfy their General Duty Clause obligations, employers most likely need to comply with federal OSHA guidance directing employers to maintain written COVID-19 Prevention Plans and implement preventive measures, such as employee use of masks, social distancing, and enhanced cleaning and disinfection measures. Employers may also need to implement engineering (e.g., installation of barriers) and administrative controls to address potential COVID-19 hazards from their operations. Retailers, for instance, may need to consider redesign of workplaces, installation of barriers, and methods for contactless interactions to prevent employees from being exposed to COVID-19 through public or customer interactions.

Some states have also adopted emergency temporary standards that impose strict obligations on employers. California and Oregon, for example, have extensive emergency temporary standard requirements, which include requirements for employees to wear masks or cloth face coverings when there is a potential for interaction with others. Following behind Virginia, these states are also in rulemaking proceedings and plan to enact a permanent COVID-19 standard. Federal OSHA has even more signaled to employers that it intends to issue even stricter COVID-19 workplace safety and health standards and may enact an emergency temporary standard similar or more restrictive to those that have been implemented at a state level. OSHA has also conveyed that enforcement of workplace safety and health preventive measures to protect against COVID-19 exposures and spread of virus is a top priority.

It is nice to think about COVID-19 restrictions ending and life returning to normal. But even as states lift their COVID-19 related orders, employers will need to think carefully about the workplace safety measures implemented in their workplaces. Employers that operate on a national level or in multiple states may also have drastically different compliance obligations related to workplace safety requirements in different locations. This, in turn, could cause significant confusion for employees, customers, visitors, and other third parties that may be on-site. Employers may therefore benefit from engaging in proactive and transparent communications with employees and third parties on COVID-19 response measures.

If you have questions about the state orders applicable to your operations or how to comply with federal and state health and safety laws, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Criticizing the Occupational Safety and Health Administration’s (OSHA) enforcement efforts during the COVID-19 pandemic, the Department of Labor Office of the Inspector General (OIG) pushes for a COVID-19, virus-specific standard in its report issued on February 25, 2021.

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