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June 15, 2021
Update: On July 27, 2021, the CDC updated its guidance to recommend that everyone – including those who are fully vaccinated – in areas of substantial or high transmission wear a mask indoors in public to maximize protection from the Delta variant and prevent possibly spreading it to others. The CDC also reminded everyone to continue to wear a mask where required by laws, rules, regulations, or local guidance.
Attention All Employers: We expect OSHA to follow suit, so if you employ workers in an area of substantial or high transmission, require face coverings indoors, regardless of your worker’s vaccination status. And remember, the transmission rates change daily. Therefore, even if you are outside of a substantial or high transmission area, consider requiring face coverings for everyone.
In mid-May, the Centers for Disease Control and Prevention (CDC) issued guidance for fully-vaccinated people, allowing them to resume many indoor and outdoor activities without wearing a mask and without social distancing. Despite the CDC’s guidance, the Occupational Safety and Health Administration (OSHA) maintained its workplace guidance regarding masking … until now. Specifically, on June 10, 2021, OSHA issued guidance for non-healthcare settings, stating:
Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.
In support of its guidance – which assists employers in meeting their obligation to provide a safe and healthy workplace – OSHA notes that the COVID-19 vaccine is highly effective at protecting most fully-vaccinated people against symptomatic and severe COVID-19 and, thus, OSHA encourages employers to take steps to make it easier for workers to get vaccinated.
For workers who are not vaccinated or who are otherwise at risk (at-risk workers are those whose medical conditions may affect their ability to have a full immune response to vaccination, those who cannot get vaccinated, or those who cannot use face coverings), OSHA recommends that employers implement multiple layers of controls, including:
Until now, many employers simply have been encouraging their employees to get vaccinated. OSHA’s guidance may lead more employers to require vaccination. Mandatory vaccine policies are permissible under equal employment opportunity laws, as long as employers accommodate employees’ disabilities and sincerely held religious beliefs. See our Client Alert here on that subject. And if employers choose to apply COVID-19 safety protocols to their workforce based on vaccination status, they must be sure to preserve confidentiality and adhere to the Equal Employment Opportunity Commission’s guidance regarding vaccination inquiries.
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