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Unvaccinated or At-Risk Employees? OSHA has Updated Guidance For That

By: Cristina N. Hyde, JD

On June 10, 2021, OSHA updated its guidance on Mitigating and Preventing the spread of COVID-19.  The guidance applies to all employers and employees who do not fall within the scope of OSHA’s Emergency Temporary Standard (ETS).  It contains both recommendations and descriptions of existing mandatory OSHA standards, but is not a regulation and does not create new legal obligations.

Unless otherwise required by law, most employers are no longer obligated to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.  However, employers are still required to provide all workers with a safe, healthful and hazard free workplace under the Occupational Safety and Health Act.  OSHA’s June 2021 guidance aims to assist in that endeavor by recommending appropriate control measures for the post-pandemic workplace, with a particular focus on unvaccinated and at-risk employees.

At-risk employees are defined as those who, due to an underlying medical condition or use of immune weakening medication, may not have a full immune response to vaccination.  They also include workers with disabilities who cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.  OSHA suggests employers take steps to protect at-risk workers as they would unvaccinated workers, regardless of their vaccination status.

The June guidance encourages COVID-19 vaccination by recommending that employers provide paid time off to get vaccinated.  Meanwhile, for those who remain unvaccinated or at-risk, OSHA suggests following a multilayered approach which includes:

  • Separation from the workplace of those infected with COVID-19 or exhibiting possible COVID-19 symptoms. (Absence policies should be non-punitive.)
  • Separation from the workplace of those unvaccinated individuals who have had close contact with someone with COVID-19. (Absence policies should be non-punitive.)
  • Maintenance of ventilation systems.
  • Ensuring appropriate physical distancing or use of appropriate barriers where distancing is not possible.
  • Providing appropriate face coverings or other appropriate personal protective equipment to unvaccinated and at-risk employees.
  • Providing reasonable accommodations for those unable to wear face coverings due to a disability or for religious reasons.
  • Limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time through methods such as telework and flexible work hours.
  • The education and training of employees related to COVID-19 polices and procedures.
  • Suggesting unvaccinated customers, visitors and guests wear face coverings.
  • Routine cleaning and disinfection of the worksite.
  • Implementing anti-retaliation policies and a process for employees to voice concerns about COVID-19 related hazards.

OSHA has stated that it will continue to update its guidance to reflect developments in science, best practices and standards. Meanwhile, if you have any questions about how the updated OSHA guidance applies to your worksite, Contact Us.

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