Employers MUST provide a reasonable expectation of safety for all employees.

Our Swartz & Swartz team has been getting questions about what steps employers need to take to keep their employees safe during the Delta variant-driven fourth wave of the COVID-19 pandemic.

With more and more people heading back to work, our Swartz & Swartz team has been getting questions about what steps employers need to take to keep their employees safe during the Delta variant-driven fourth wave of the COVID-19 pandemic. With updated health and safety guidelines being recently issued by federal agencies, our team wanted to make sure local employers and employees know what to expect, focusing on workplaces outside the healthcare industry.

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 Emergency Temporary Standard (ETS), which applies only to employers in the healthcare industry, and importantly, updated its guidance for all other employers in Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Both sets of standards are aligned with the Centers for Disease Control and Prevention (CDC) guidance. Massachusetts is under federal OSHA jurisdiction which covers most private sector workers within the state. State and local government workers are not covered by federal OSHA.

It’s worth noting that the guidance is not a new standard or regulation; it doesn’t create any new legal obligations for employers. According to OSHA, the guidelines are meant to help employers keep their workplaces healthy and safe, given what we know about the Delta variant.

Focus on Unvaccinated & At-risk People

OHSA is clear that its guidance is about trying to protect unvaccinated people and at-risk people who may or may not be vaccinated from getting sick with the Delta variant. The federal agency emphasizes that employers “no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure,” except when measures are “required by federal, state, local, tribal, or territorial laws, rules, and regulations.”

Vaccines Save Lives

Right off the top, OSHA states that vaccination is the most effective way to protect against severe illness or death from COVID-19 within the workplace. OSHA strongly encourages employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects, so if you haven’t gotten vaccinated yet and you are back at work, you may want to inquire about paid time off to get your jab.

To help employers, OSHA notes that businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act if they provide paid time off from April 1, 2021, through September 30, 2021. OSHA goes so far as to suggest that employers should also consider working with local public health authorities to provide vaccinations for unvaccinated workers in the workplace. Below is a high-level summary of guidance for unvaccinated employees and employers.

Unvaccinated workers should:

• Properly wear a face mask that covers the nose and mouth.
• Stay at least 6 feet away from other people.
• Be aware of whether rooms are properly ventilated.
• Practice good personal hygiene and wash hands often

Employers can help reduce the spread of COVID-19, according to OSHA, by:

• Encouraging unvaccinated workers to stay home if they have been in close contact with someone who tested positive for COVID-19.
• Encouraging all workers to stay home if they are infected or have COVID-19 symptoms.
• Maintaining physical distancing policies for unvaccinated and at-risk employees and providing them with appropriate face coverings.
• Educating and training workers on COVID-19 policies and procedures.
• Suggesting that unvaccinated customers and visitors wear face coverings.
• Maintaining ventilation systems.
• Performing routine cleaning.
• Reporting COVID-19 infections and deaths.
• Protecting employees from retaliation and setting up an anonymous process for them to report COVID-19-related hazards.

Whether you are an employer or an employee Swartz & Swartz P.C. is here to help you and answer any employment-related litigation questions you have. Call our Boston, Massachusetts office at (617) 742-1900, or toll-free at 1-800-545-3732.