1. Both Vaccinated and Unvaccinated Workers Should Wear Masks in the Public Areas of Indoor Workplaces.
The Center for Disease Control and Prevention (“CDC”) updated its Covid-19 guidance on July 27, 2021, (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html ) adding a recommendation for fully vaccinated persons in addition to unvaccinated persons to wear a mask in public indoor settings in areas of substantial or high transmission. (Click here to see transmissions by county nationwide: https://covid.cdc.gov/covid-data-tracker/#county-view). The CDC further provided a recommendation for fully vaccinated people who have close contact with someone suspected or confirmed to be infected with Covid-19 to get tested three to five days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.
The Occupational Safety and Health Administration (“OSHA”) similarly updated its guidance to employers on August 13, 2021. https://www.osha.gov/coronavirus/safework OSHA’s update closely resembles the CDC’s updated guidance issued on July 27, 2021. OSHA now advises fully vaccinated workers in areas of substantial or high community transmission to wear masks in the indoor public areas of workplaces. Currently, over 90% of counties nationwide have either substantial or high transmission rates. Similarly, OSHA urges fully vaccinated workers to get tested three to five days after such an exposure to either a suspected or confirmed Covid-19 infected person and to wear a mask in indoor public areas for either 14 days or until they receive a negative test result.
OSHA’s updated guidance includes several additional recommendations for employers. It stresses that vaccination provides the most effective way to protect against severe illness or death from Covid-19. It urges employers to allow employees to use paid time off for them to get vaccinated and to recuperate from any side effects of vaccinations. OSHA further “suggests” that employers adopt policies that require employees either to undergo vaccination or to submit to regular Covid-19 testing. OSHA’s suggestion provides employers with a ready explanation to those who object to their mandatory vaccination policies, namely, they have merely followed OSHA’s guidance.
2. Many Large Employers Have Already Announced Changes to Their Policies in Response to the CDC’s Updated Guidance Alone.
Airlines, such as United Airlines, Delta Airlines, and Frontier Airlines have adopted mandatory vaccination policies for their workforces. In the case of Delta Airlines, it has limited its policy so that it affects only new hires. Other employers, such as, Amazon (the second largest employer in the United States) and JP Morgan Chase now require fully vaccinated workers to wear masks. Unvaccinated employees of JP Morgan must also undergo Covid-19 testing at least twice a week. JP Morgan further prohibits such employees from attending indoor employee events with 25 or more workers. (https://www.nytimes.com/2021/08/06/business/united-airlines-vaccines.html ).
Some employers have adopted mandatory vaccination policies for less than all of their workers. Disney requires all current salaried and nonunion hourly employees to be fully vaccinated and all of its new hires must be fully vaccinated before they start working. Walmart now requires all workers at its headquarters and its managers who travel within the United States to be vaccinated. It has further imposed a mandatory mask wearing policy for all of its workers in its retail stores, even if they are fully vaccinated. Both Google and Facebook have announced mandatory vaccination policies for all of their office employees. (https://www.huffpost.com/entry/walmart-disney-vaccine-mandate-workers_n_610471a3e4b00fa7af82bdbb ).
3. So Far, at Least, Employee Challenges to Their Employers’ Mandatory Vaccination Policies in Court Have Lost.
At this point, only a handful of lawsuits have challenged an employer’s mandatory vaccination policy. The early cases have argued that employers cannot impose vaccination mandates, because the Food and Drug Administration has issued only an emergency use authorization for the vaccines, rather than its full approval of them. They have characterized the vaccines as “unapproved” and “experimental.” Some have also alleged that their federal common law right to privacy gives them a right to refuse their employer’s vaccination mandate. The only court to render a decision in these cases, the United States District Court for the Southern District of Texas, dismissed all of the claims that employees of Houston Methodist Hospital brought against their employer. The court found no merit to any of the workers’ arguments. It further held that the mandatory vaccination policy states a lawful employment policy that limits a worker’s behavior in exchange for her or his remuneration. (https://www.natlawreview.com/article/can-employers-make-covid-19-vaccinations-mandatory).
Conclusion:
The Covid-19 pandemic has evolved over time. Both the CDC and OSHA have had to adjust their guidance to the public generally and to employers specifically over time. Thus, employers must vigilantly follow new developments in real time with the Covid-19 virus as they occur and how the CDC and OSHA respond to them. As their guidance evolves, employers must modify their workplace policies to conform to their updated guidance. Employers need to take notice of any OSHA advisory guidance that has implications for the employer’s obligation under the General Duty Clause to provide a workplace free from recognized hazards that cause or are likely to cause either serious injury or death. If employers implement policies and practices consistent with such OSHA guidance, they will likely minimize their exposure to OSHA enforcement actions. For more information about OSHA’s updated guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 | grichardson@evans-dixon.com.
Missouri | Illinois | Kansas | Nebraska | Iowa
