At the end of January OSHA issued another set of Guidelines for dealing with COVID-19 in the workplace. These Guidelines are not legal requirements. However, I suspect that if OSHA investigates and sees that a business is not following these Guidelines a determination that the business has violated OSHA’s General Duty clause, which states that employers have a general duty to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm”, is likely.
Among other things the Guidelines state:
- Employees who have been vaccinated against COVID-19 must still follow the protective measures, including wearing a mask, social distancing and hand washing.
- In adopting a workplace safety plan employers should engage employees to ensure their thoughts and concerns are considered. It is an interactive process.
- Employers should consider protections for workers at a higher risk. But be careful. This does not mean you automatically send all older employees, or employees with known underlying health issues, home. Doing so could lead to claims of age and/or disability discrimination. Instead, make a decision that applies to all high risk employees, not just a certain group or groups.
- Follow the CDC isolation guidelines for employees who have COVID-19 or have or may have been exposed to it.
The bottom line is employers should continue to be proactive, responsive and flexible.