For generations of children, fall has signified a return from summer vacation and the start of new school year.  This year, many adults are heading “back to the office” too, with a mix of  hope instilled by the success of widespread vaccination, and trepidation given the rise of the Delta variant.  The country’s leading authorities on COVID-19 workplace guidance weigh in on what employers can do, at this stage of the pandemic, to continue to protect their workforce while maintaining and increasing productivity.  Here’s what you need to know as of today:

Since the onset of the COVID-19 pandemic, the Centers for Disease Control (“CDC”) has been at the forefront of publishing guidelines for the nation, including workplaces.  As a major component of the Department for Health and Human Services, the CDC is focused on disease surveillance and public health, and is committed to protecting America from health, safety, and security threats.

As of August 2021, the CDC offers the following updated baseline recommendations for indoor public spaces, including workplaces:

  1. Fully vaccinated people (e., 2 weeks after the final dose of the vaccine) no longer need to wear a mask, socially distance, or quarantine;
  2. In areas of substantial or high transmission, the CDC recommends even fully vaccinated people wear masks indoors to protect against the Delta variant;
  3. For people who are not fully vaccinated, the CDC still recommends wearing a mask in all indoor public places and staying at least 6 feet apart from non-household members; and
  4. Employees who are fully vaccinated but symptomatic should isolate.

Guidance from the Equal Employment Opportunity Commission (“EEOC”), updated in May 2021, focusses on an employer’s right to require vaccination (and proof of it), and recognized exemptions for certain types of employees.  Generally, the EEOC “enforces workplace anti-discrimination laws,” protecting employees from discrimination based on race, color, national origin, religion, sex, pregnancy, gender, age, and disability.  Under the current EEOC guidance, employers can require that all employees be vaccinated before returning to the office.  They also can ask for proof of vaccination, either simply by the honor system, or requiring employees to show their vaccination card or sign an affidavit.  Whether an employer should mandate vaccination, however, will be specific to its workforce and objectives.

Employer-mandated vaccination is subject to two exceptions, however: (1) if an employee has a disability that prevents them from getting vaccinated; or (2) if an employee has a sincerely held religious belief that prohibits getting the vaccination.  If an employee claims either exemption, then the employer must engage in an interactive dialogue with the employee to determine whether it can reasonably accommodate them (e.g., by offering remote work or creating a safe space in the workplace where they can keep socially distant from others).  The EEOC distinguishes between a “sincerely held religious belief,” however uncommon it may be (i.e., it need not be a widely held religion or one the employer even recognizes), and a political or philosophical belief, which does not require any accommodation.

Employers that require their employees to disclose vaccination status must treat it as confidential medical information.  That is, upon learning whether an employee is vaccinated, the employer cannot ask certain follow-up questions (e.g., why aren’t you vaccinated?) that risk venturing into prohibited areas.  Additionally, the Americans with Disabilities Act (the “ADA”) requires that employers store information regarding employee vaccination status, and COVID-19 medical history and test results, separately from other employee personnel records (e.g., in a locked file cabinet or password protected database), just like other confidential medical information.

Finally, guidance from the Occupational Safety and Health Administration (“OSHA”), updated in August 2021, primarily focusses on continued protections for unvaccinated employees.  OSHA is within the Department of Labor, established to “ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.”  Some jurisdictions have state-specific OSHA equivalents, but Massachusetts does not, and federal OSHA standards and regulations are enforceable in Massachusetts.

OSHA generally advises that most employers need not take any steps to protect fully vaccinated employees, and incorporates the CDC’s most recent guidance for fully-vaccinated employees to wear masks in public indoor spaces in areas of substantial or high transmission.  For unvaccinated and at-risk employees, employers must continue to comply with their general duty under OSHA “to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”  To best accomplish this, OSHA encourages employers to:

  1. “Facilitate employees getting vaccinated … by granting paid time off for employees to get vaccinated and recover from any side effects”;
  2. “Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for [COVID-19], and all workers with COVID-19 symptoms to stay home from work”;
  3. “Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers”;
  4. “Provide workers with face coverings or surgical masks as appropriate, unless their work task requires a respirator or other PPE”;
  5. “Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand”;
  6. “Suggest or require 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”;
  7. “Maintain ventilation systems”;
  8. “Perform routine cleaning and disinfection”;
  9. Record and report COVID-19 infections and deaths” following “mandatory OSHA rules”;
  10. “Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards”; and
  11. “Follow other applicable mandatory OSHA standards.”

OSHA also offers the following additional guidance for Higher Risk Workplaces, which are determined on a case-by-base basis, based on closeness of contact, duration of contact, and type of contact between unvaccinated or at-risk people (examples often include workplaces with manufacturing, production, and assembly lines):

  1. Stagger employees’ breaks and arrival/departure times;
  2. Provide visual cues in the workplace (g., floor markings, signs);
  3. “Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, [and] encourage and consider requiring customers and other visitors to do the same”; and
  4. Communicate risks of ride sharing to and from work.

Kenney & Sams anticipates these guidelines will continue to change alongside the pandemic, to remain relevant.  This article reflects current OSHA guidelines, which were last updated August 13, 2021.  We note that President Biden’s most recent COVID-19 plan, issued September 9, 2021, charged OSHA with drafting a rule requiring all employers with 100+ employees to require vaccination or to obtain proof of a negative test at least once per week.  We expect OSHA will issue an Emergency Temporary Standard to that extent in the coming weeks and months, but it has not yet taken effect.

We recommend employers follow the CDC, EEOC, and OSHA online for their latest guidance, and review with counsel how to best to protect employees in their unique workplaces. Please contact us for specific guidance for any questions regarding the new guidelines.