COVID-19 Summer Update: OSHA and EEOC Guidance and Vaccine Litigation

With the rise in vaccination rates and the increased return of workers to the workplace, the Occupational Health and Safety Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) have issued updated guidance for employers and employees relating to safety standards and vaccine policies.  Specifically, on May 28, 2021, the EEOC issued updates to its COVID-19 Technical Assistance Concerning COVID-19 to better address vaccines and vaccination programs.  Soon after, on June 10, 2021, OSHA issued its emergency temporary standard to protect healthcare workers from the coronavirus (the “Emergency Temporary Standard”), codified at 29 C.F.R. §§ 1910.502-509.  OSHA also issued new guidance for all other industries, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”.  This article will provide an overview of these new policies and guidance as well as recent legal developments concerning vaccines. 

OSHA’s EMERGENCY TEMPORARY STANDARD FOR HEALTHCARE

The Emergency Temporary Standard generally applies to all settings where any employee provides healthcare services or healthcare support services, including employees in hospitals, nursing homes, assisted living facilities, first responder positions, and home healthcare, although certain exemptions may apply, such as exemptions for fully vaccinated workplaces. 

The Emergency Temporary Standard is one standard with multiple sections found at 29 C.F.R. §1910.502-509.  As summarized by OSHA in its Emergency Temporary Standard Fact Sheet, some of the key requirements of the ETS are to:

• Develop and implement a COVID-19 plan. The plan must be in writing if the employer has more than ten (10) employees and must include (1)  a designated safety coordinator with authority to ensure compliance, (2) a workplace-specific hazard assessment, (3) input of non-managerial employees in hazard assessment and plan development/implementation, and (4) policies and procedures to minimize the risk of transmission of COVID-19 to employees;
• Screen and triage patients and other visitors and implement patient management strategies, including limiting and monitoring points of entry where direct patient care is provided;
• Develop and implement policies and procedures that comply with the Standard and Transmission-Based Precautions based on the Centers for Disease Control;
• Provide facemasks and personal protective equipment to employees and ensure that employees wear them and utilize them in the appropriate situations;
• Implement health screening and medical management for employees, including, but not limited to, screening employees before each workday, requiring employees to promptly notify the employer when the employee is COVID-19 positive, experiencing symptoms, or suspected of having COVID-19, and for employers with more than ten (10) employees, providing medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine; and
• Provide reasonable time and paid leave for vaccinations and vaccine side effects.

The Emergency Temporary Standard was effective immediately upon publication in the Federal Register on June 10, 2021, and employers must comply with most provisions within fourteen (14) days after publication (provisions for physical barriers, ventilation and training are within thirty (30) days).  The Emergency Temporary Standard also prohibits an employer from retaliating against an employee for exercising their rights under the standard or engaging in actions required by the standard.    

It is important to remember the Emergency Temporary Standard is not just department guidance, but is composed of legal requirements that covered employers must follow.  As such, covered employers should review the Emergency Temporary Standard in its entirety and seek legal counsel if necessary.

The full Emergency Temporary Standard can be found on OSHA’s COVID-19 Healthcare ETS website, which also contains FAQs and other employer tools.

OSHA’S GUIDANCE FOR ALL OTHER INDUSTRIES

OSHA’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”) is intended to assist employers who are not covered by the Emergency Temporary Standard in taking appropriate steps to prevent exposure and infection of COVID-19 in the work environment. 

Pursuant to the Guidance, employers must continue to take steps to protect both unvaccinated individuals and “at-risk workers.”  At-risk workers are those who may have a medical condition that affects a worker’s ability to have a full immune response to the COVID-19 vaccine, such as those who take immune weakening medications or have certain medical conditions.  The Guidance does not differentiate between employees who are unvaccinated due to a disability or a sincerely held religious belief and those who remain unvaccinated through personal preference.  Rather, the Guidance requires employers to take steps to protect all unvaccinated employees and at-risk workers.

While most non-healthcare employers no longer need to take steps to protect employees from COVID-19 when all employees are fully vaccinated, employers whose workforce is not fully vaccinated must continue measures to protect unvaccinated and at-risk workers.  The Guidance recommends that employers should engage with employees to develop interventions that protect unvaccinated and at-risk workers and prevent the spread of COVID-19.  As set forth in the Guidance, these interventions include:

• Granting paid time off for employees to get vaccinated;
• Instructing all employees to stay home when they are infected with COVID-19 or are exhibiting symptoms of COVID-19 and, if unvaccinated, to stay home if they have been in close contact with someone who has COVID-19. In addition, employers should ensure that absence policies are non-punitive and should consider revising policies that encourage workers who are infected with COVID-19 or who were exposed to COVID-19 (if unvaccinated) to come to work sick;
• Implementing physical distancing for unvaccinated and otherwise at-risk workers. Employers can also limit the number of unvaccinated or at-risk employees by implementing flexible worksites or work hours.  If physical distancing is not possible, then employers should consider installing transparent shields or other solid barriers; 
• Providing unvaccinated and at-risk workers with face coverings or surgical masks unless their work tasks require a respirator or other form of personal protective equipment. The Guidance states that “[e]mployers should provide coverings to unvaccinated and otherwise at-risk workers at no cost.”
• Educating and training employees on COVID-19 policies and procedures in accessible formats and languages understood by the employees;
• Suggesting that unvaccinated customers, visitors and guests wear face coverings;
• Maintaining and/or improving ventilation systems;
• Performing routine cleaning and disinfection;
• Recording and reporting COVID-19 infections and deaths in accordance with 29 C.F.R. § 1904;
• Implementing protections from retaliation and setting up anonymous processes for workers to voice concerns about COVID-19 related hazards; and
• Following all other applicable mandatory OSHA standards.

In addition to the above actions, the Guidance provides additional recommendations for retail and higher risk workplaces, such as manufacturing, or in other situations where unvaccinated or at-risk workers have prolonged closeness with other employees.

The full Guidance can be found on OSHA’s website at Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. 

EEOC UPDATED GUIDANCE

The EEOC updated its Technical Assistance Guidance titled: What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws to better address COVID-19 vaccinations and EEO laws.  In this updated guidance, the EEOC makes clear that “[t]he federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” 

Employers, however, must remain mindful that “Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.”  In addition, employees who do not receive the vaccine due to pregnancy may be entitled to accommodations under Title VII if accommodations have been made for other employees.  Finally, employees who received the vaccine, but have a continuing concern of heightened risk of severe illness from a COVID-19 infection due to an underlying disability, such as being immunocompromised, may also be entitled to a reasonable accommodation under the ADA. 

In addition to allowing employers to mandate vaccines for employees, the EEOC’s updated guidance also confirms that employers may offer incentives to employees who voluntarily provide documentation or other confirmation that they have received the COVID-19 vaccine.  The EEOC does not clarify whether incentives must be provided to an employee who cannot receive a COVID-19 vaccine due to a disability or sincerely held religious belief. 

Finally, the EEOC guidance states that employee vaccination information should be kept confidential similar to other medical information relating to an employee. 

VACCINE LITIGATION

It is anticipated that vaccination requirements and related policies will be a hotly litigated topic in the employment arena.  Recently, a plaintiff in Texas, Jennifer Bridges, and 116 other employees sued Houston Methodist Hospital challenging the hospital’s mandatory vaccine requirement for those who were not exempt due to a disability or sincerely held religious belief.  The employees asserted that terminating their employment for failing to receive the vaccine in violation of this requirement would violate public policy and Texas law.  The judge dismissed the case stating that the hospital “is trying to do their business of saving lives without giving them the COVID-19 virus,” and that “[i]f a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired.”  The judge also concluded that an employee “can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

While this case was determined based upon Texas law, there is currently no requirement under Florida law that a private employer retain an employee who refuses to comply with a mandatory vaccine program due to personal preference rather than due to a disability or sincerely held religious belief.

We will continue to monitor this case as well as any cases arising in Florida.  Before making a decision to terminate an employee for refusing to obtain a COVID-19 vaccine, however, we encourage you to confer with legal counsel as case law and guidance can rapidly change. 

Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is a senior associate in the Clearwater office whose practice focuses on Labor and Employment Law.

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.