In November of 2021, the Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS), requiring employers with 100 or more employees who come into contact with others to ensure that their employees were fully vaccinated against COVID-19 or tested weekly for the virus. Since then, the ETS has been stayed by the U.S. Supreme Court pending the outcome of a hearing in the Sixth Circuit Court of Appeals. Due to this development, on January 26, 2022, OSHA withdrew the ETS as an enforceable standard. However, the agency is not withdrawing the ETS as a proposed rule. The agency also continues to strongly encourage vaccination of workers against the continuing dangers posed by COVID-19 in the workplace. In addition, OSHA has maintained its recommendations for employers regarding their vaccine-related policies. Here is more on what OSHA recommends for your vaccination policy:
OSHA’s Vaccine-Related Policy Recommendations
OSHA recommends that an employer’s written vaccine policy include provisions that address the following:
- Requirements for COVID-19 vaccination;
- Applicable exclusions from the written policy;
- Information on determining an employee’s vaccination status and how this information will be collected;
- Paid time and sick leave for vaccination purposes;
- Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace;
- Information to be provided to employees; and
- Disciplinary action for employees who do not abide by the policy.
If there are both vaccinated and unvaccinated employees, OSHA recommends developing and including the relevant procedures for the two sets of employees in the written policy.
For unvaccinated employees, the policy should also include information such as:
- When the policy went into effect,
- To whom the policy applies,
- Compliance deadlines, and
- Compliance and enforcement procedures.
Although employers are not required to comply with the ETS, they can continue to use their vaccine policy or develop new protocols. Employers may also choose not to require vaccination and testing for the time being.
OSHA’s COVID-19-Related Workplace Recommendations
OSHA continues to recommend that employers take the necessary precautions to protect workers from spreading or contracting COVID-19. The agency’s recommendations vary according to the level of COVID-19-related risk presented in the workplace. According to its guidance, OSHA recommends that the workplace have multi-layered controls tailored to its characteristics and workers, especially those who are unvaccinated or otherwise at risk.
Some of OSHA’s recommended COVID-19 workplace measures include but are not limited to:
- Offering telework,
- Having flexible schedules,
- Instituting engineering controls such as those pertaining to ventilation,
- Using face coverings,
- Requiring physical distancing,
- Using enhanced cleaning protocols with an emphasis on high-touch surfaces, and
- Having a vaccination policy in place.
OSHA also recommends that employers engage with their representatives and workers to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:
- Granting paid time off for employees to get vaccinated and recover from any adverse effects,
- Adopting policies that require vaccination or for employees to undergo routine testing and wear a mask and practice physical distancing if they remain unvaccinated,
- Instructing workers who have been infected or had close contact with someone who has tested positive for COVID-19 to remain home and practice precautions according to the CDC’s protocols.
- Eliminating or revising policies that encourage workers who are sick or who have been exposed to come to the workplace,
- Implementing physical distancing in communal spaces for unvaccinated or otherwise at-risk workers,
- Adding transparent shields in spaces where workers cannot safely distance,
- Requiring employees to wear masks while indoors as recommended in high transmission areas regardless of vaccination status,
- Encouraging and supporting voluntary use of PPE if appropriate to your workplace environment.
In addition to having these policies, OSHA recommends that employers provide information to employees regarding safe work practices, reasonable accommodations, anti-discrimination, and anti-retaliation policies.
OSHA’s Guidance and Information Regarding COVID-19 Constantly Change
The guidance and information regarding COVID-19 related workplace practices are constantly changing in response to conditions as well as state and federal legal developments. Therefore, the best way to determine how to develop your vaccine and other coronavirus workforce policies and business practices is by working with an experienced Florida business attorney.
Contact an Experienced Florida Business Attorney
Attorney Richard Sierra at the Florida Small Business Center assists clients like you with business and litigation matters. As always, Our Goal Is to Help You Succeed™. For an appointment, you may call us at 1-866-842-5202 or use the contact form on our website. We represent clients throughout the State of Florida, including Coral Springs, Coconut Creek, Boca Raton, Delray Beach, Pompano Beach, Sunrise, Fort Lauderdale, Miami, West Palm Beach, Jupiter, Deerfield Beach, Stuart, Port St. Lucie, Orlando, Naples, Fort Myers, Sarasota, Tampa, and surrounding communities.