By Maureen James

With Massachusetts’ State of Emergency ending on June 15, 2021, many are starting to wonder what is on the other side of this pandemic. Employers have spent more than a year trying to hold together businesses, keep employees safe, comply with regulations and manage so many other unprecedented challenges. But as the number of vaccinations increases and infection rates decrease, what shifts do employers need to make? Can they loosen the restrictions they have been operating under? OSHA says…absolutely.

OSHA recently updated its guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” For employers not covered by the COVID-19 Healthcare Emergency Temporary Standards (ETS), these updated recommendations make a very direct opening statement:

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).

According to the CDC, individuals are considered fully vaccinated two weeks after their second dose of Pfizer or Moderna vaccines, or two weeks after their Johnson & Johnson vaccine.

OSHA views “at-risk workers” as those who may fall into several different scenarios, but ultimately, they should be protected as if they are unvaccinated.

Some conditions, such as a prior transplant, as well as prolonged use of corticosteroids or other immune-weakening medications, may affect workers’ abilities to have a full immune response to vaccination. See the CDC’s page describing Vaccines for People with Underlying Medical Conditions and further definition of People with Certain Medical Conditions. Under the Americans with Disabilities Act (ADA), workers with disabilities may be legally entitled to reasonable accommodations that protect them from the risk of contracting COVID-19 if, for example, they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.

The guidance sets forth some suggestions about how employers can protect those at-risk and mitigate the spread of COVID-19 in the workplace.

1. Grant paid time off for employees to get vaccinated.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, 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 language they understand.
6. Suggest that unvaccinated customers, visitors or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors or guests.
7. Maintain ventilation systems.
8. Perform routine cleaning and disinfection.
9. Record and report COVID-19 infections and deaths.
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
11. Follow other applicable mandatory OSHA standards.

When updating its guidance, OSHA recognized that the vast majority of employers will not be able to reach 100% vaccination rates. The guidance outlines how to approach scenarios where the workforce contains a mix of persons who are vaccinated, unvaccinated, and/or at-risk. This is particularly relevant for employers who maintain “higher-risk workplaces” such as manufacturing, processing plants and high volume retail establishments, where workers remain in close contact indoors for long periods of time. In those scenarios, OSHA recommends strategies that will lessen the risk of exposure to those employees through methods such as scheduling (staggered times for arrival, breaks, departures or off-peak hours), signage (hygiene, masks, physical distancing), physical barriers and improved ventilation.

Although Massachusetts may no longer be under a State of Emergency, employers still need to maintain protections for those who are unvaccinated and/or at risk. The rules and restrictions that have been relaxed over the past month or so can continue, but cannot be completely removed to maintain a level of protection for unvaccinated and/or at-risk employees.

The rules and regulations are constantly changing, so employers should continue to keep apprised of new information from the state and federal governments. Here, we have provided you with an overview of some recent developments, but we understand it may not outline specifically how the new guidance will impact your business. If you have questions specific to your company’s needs, please feel free to reach out to our office.