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We hope that you are having a lovely summer and enjoying some of this warm weather. This employment law update includes a quick run-down on the new OSHA guidance that was published June 10, 2021 and discusses the dismissal of a lawsuit in Texas that challenged an employer’s vaccination requirement.

OSHA Guidance

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance to employers on preventing the spread of Covid-19 in the workplace. These guidelines are applicable to all workplace settings. The Emergency Temporary Standard remains in effect for healthcare workplace settings and is unaffected by this guidance. The main focus of the guidance is to protect unvaccinated or otherwise at-risk employees. The guidance reiterates that unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect fully vaccinated workers who are not otherwise at risk. The guidance is not a standard or regulation and creates no new legal obligation for employers. The purpose is to provide recommendations and describe existing mandatory OSHA standards.

The guidance provides a definition for “at-risk workers” as those individuals who are unable to get vaccinated or unable to receive a full immune response to a vaccination for Covid-19. The sections discussing “at-risk workers” mentions the Americans with Disabilities Act (“ADA”) and the fact an employer may be required to provide a reasonable accommodation if the individual cannot be protected by vaccination, cannot get the vaccination, or cannot use a face covering.

The guidance suggests a multi-layered intervention program to protect unvaccinated or otherwise at-risk employees and mitigate the spread of Covid-19, including:

1. Granting paid time off for employees to get vaccinated.
2. Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with Covid-19 symptoms to stay home.
3. Implementing Physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
4. Providing unvaccinated and otherwise at-risk workers with a face covering or surgical mask, unless their work task requires a respirator or other PPE.
5. Educating and training workers on your Covid-19 policies and procedures using accessible formats and in a language they understand.
6. Suggesting that unvaccinated customers, visitors, or guests wear face coverings.
7. Maintaining ventilation systems.
8. Performing routine cleaning and disinfection.
9. Recording and reporting Covid-19 infections and deaths.
a. Under mandatory OSHA rules found in 29 CFR 1904, an employer is required to report work-related cases of Covid-19 on its OSHA Form 300 logs if the criteria established in the regulation are satisfied.
b. Mandatory OSHA standard 29 CFR 1904.35(b) protects employees from discrimination for reporting a work-related illness.
10. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about Covid-19 related hazards.
11. Following other applicable mandatory OSHA standards including requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). The Emergency Temporary Standards are still applicable in healthcare workplaces.
The guidance contains a section that sets out measures appropriate for higher-risk workplaces with mixed vaccination status. Determining if your workplace is a higher-risk workplace requires consideration of factors such as close contact, duration of close contact, nature and type of contact, and other considerations like ride-sharing, frequent contact with the unvaccinated public, and communal housing or living quarters provided by the employer.

In higher-risk workplaces the guidance suggests best practices, including:

1. Staggering break times or providing temporary break areas and restrooms to avoid large groups of unvaccinated or otherwise at-risk workers from congregating. Unvaccinated or otherwise at-risk employees should maintain 6 feet of distance at all times.
2. Staggering worker arrival and departure time to avoid congregation of unvaccinated or otherwise at-risk employees.
3. Providing visual cues as a reminder to socially distance.
4. Implementing strategies to improve ventilation in the workplace.
In workplaces with assembly lines:
5. Properly spacing employees to avoid close physical contact.
In retail workplaces:
6. Suggesting masks for unvaccinated customer and visitors.
7. Considering means of physical distancing from people whose vaccination status is unknown. This may be through the use of physical barriers.
8. Moving payment terminals away from unvaccinated or otherwise at-risk workers.
9. Shifting stocking activities of unvaccinated or otherwise at-risk employees to off-peak or after hours times to reduce contact.

Workers who travel by employer-provided bus or van:

10. Notifying workers and otherwise at-risk workers of the risk from Covid-19 and to the extent feasible, helping limit the number of workers in one vehicle.
11. Making sure all unvaccinated or otherwise at-risk workers are wearing appropriate face coverings.

These best practices are published by OSHA in order to provide guidance to employers struggling with how to handle the return to work in person. These guidelines are helpful to put an employer on notice for what steps they should be taking to protect their workers under the OSHA General Duty Clause.

Texas District Court Dismisses Lawsuit

In other news, a federal district court dismissed the lawsuit filed by 117 hospital employees challenging their employer’s vaccination requirement. The case is captioned Bridges v. Houston Methodist Hospital, et al., Case No. 4:21-CV-1774 and can be located using the federal PACER system.

The federal district court dismissed the claims by Bridges in total. Bridges attempted to rely on wrongful termination law and violation of public policy. Her claims relied on the factual allegation that available Covid-19 vaccines are experimental and dangerous. The court rejected this factual contention as false and irrelevant. The court stated that Texas law protects employees from being terminated for refusing to commit an act carrying criminal penalties. The court found no illegal act was required of Bridges and dismissed this claim. The court went out of its way to discuss coercion of the employees. The court stated the choice between being fired and being injected with a vaccine is not coercion. The court continued that “Bridges can freely choose to accept or refuse a Covid-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” This case shows that private employers have a strong case for requiring vaccinations for their employees.

As always, please contact us with any issues or questions you may have regarding COVID-19 in the workplace, or any other employment law matters, 316-262-2671. ... See MoreSee Less