New OSHA Guidelines for Non-Healthcare Workers
In July 2021, the Centers for Disease Control and Prevention (CDC) updated its guidance for those who are fully vaccinated, recommending that they wear masks in certain situations. In response, effective August 13, 2021, OSHA updated its guidance to reflect CDC’s July 27th guidance.
That is, OSHA now says that all workers, including those who are fully vaccinated, should wear face coverings in public indoor settings in areas of “substantial or high transmission,” unless their work requires a respirator or other personal protective equipment (PPE).
The new guidelines also indicate that fully vaccinated workers who have had a known exposure to someone with suspected or confirmed COVID-19 should be tested three to five days after exposure and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
DOJ Permits Mandatory COVID-19 Vaccines in the Workplace
Last month, the US Department of Justice (DOJ) addressed the concern that workplace vaccine requirements may not be legally permissible under the Food, Drug and Cosmetic Act (FDCA), given that the vaccines do not yet have full approval are instead licensed through the Emergency Use Authorization (EUA) process.
Some have argued that these requirements cannot lawfully be imposed in light of the fact that section 564 of the FDCA states that potential vaccine recipients are to be informed that they have the “option to accept or refuse” receipt of the vaccine.
The DOJ opinion states that Section 564 of the FDCA allows employers to make COVID-19 vaccinations a condition of employment even though the vaccines are subject to EUA.
“We conclude,” said the DOJ, “that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.”
That is, the provision requires only that potential vaccine recipients be “informed” of certain information, including “the option to accept or refuse administration of the product.”
The DOJ opinion states that section 564 does not prohibit employers and others from imposing harsh consequences on those who choose not to be vaccinated, citing the court in Bridges v. Houston Methodist Hospital, which held that an employer’s vaccination policy wasn’t “coercive” because 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.”
As we mentioned in a previous Alert, the guidelines of the federal Equal Employment Opportunity Commission (EEOC) state that the federal equal employment opportunity (EEO) laws permit employers to refuse to allow employees to enter the workplace without a vaccine and to offer incentives to employees who voluntary provide evidence of vaccination.
These programs must be applied so that employers are not treating employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Absent special circumstances (including the accommodations discussed below), under the EEO laws, employers can fire employees who choose not to be vaccinated with a vaccine.
In some circumstances, employers must 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.
The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for a religious reason. Some possible accommodations mentioned by the EEOC include having unvaccinated employees wear a face mask, work at a social distance from others, work a modified shift, be periodically tested for COVID-19, work remotely, or accept a reassignment.
Please feel free to contact us if you have any questions about the workplace vaccine requirements or any other aspect of employment law.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm. The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Nilotpal Kalita on Unsplash
