OSHA guidance is clear that an employer is responsible to provide a safe work environment in the face of COVID-19. In a work environment, compliance can be complicated when there is a mix of vaccinated and unvaccinated people present.
OSHA states that getting vaccinated against the COVID-19 is “the optimal step” to protect the workplace environment. The agency encouraged employers to “engage with workers and their representatives to implement multi-layered approaches to protect unvaccinated or otherwise at-risk workers from the coronavirus.” OSHA “suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing—in addition, to mask-wearing and physical distancing—if they remain unvaccinated.”
OSHA’s guidance provides recommendations and does not mandate COVID-19 vaccination in the workplace. “OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing—in addition to mask-wearing and physical distancing—if they remain unvaccinated,” according to the guidance.
While vaccines were being administered under emergency authorizations, there has been much confusion over the feasibility of vaccination requirements with legal challenges arising from announced mandates. The U.S. Food and Drug Administration (FDA) recently issued full approval for the Pfizer-BioNTech COVID-19 vaccine providing support for employers and other institutions to mandate vaccinations. The FDA’s full approval of the Pfizer vaccine is welcome news for employers who wish to mandate the vaccine to fulfill their responsibilities under the Occupational Safety and Health Act (OSHA) to provide a safe work environment for their workforces.
Employers implementing vaccine mandates will still need to deal with several issues. Employers must accommodate genuine religious objections and medical conditions that prevent an employee from taking the vaccine. Employers need to be thoughtful about employees with accommodation issues and their procedures for obtaining, assessing, and evaluating accommodation requests, whether for medical or religious reasons, to ensure fair and consistent treatment and genuine need for such accommodations. Employers also will have to continue to consider how to satisfy their duties to provide a safe workplace given there may be individuals unable to become vaccinated. Such considerations may
include implementation of testing, masking, and social distancing requirements, all of which may be subject to an ever-changing array of state and local rules.
A vaccination mandate also raises complicated questions. Should employers plan to mandate vaccination require proof of vaccination from their employees or rely upon an honor system? Requiring proof of vaccination leads to confidentiality burdens under the Americans With Disabilities Act, How should Employers handle medical record retention rules under OSHA if they choose to ask employees for copies of their vaccine cards. What liability does the Employer take on relying on vaccination records that may not be accurate? All questions need to be addressed in the face of creating and implementing a vaccination policy.