Employment Law Update: The Ongoing Pandemic and OSHA Developments

The pandemic continues. While many states are dropping restrictions, the virus is still spreading, and employers still need to focus on keeping their workers safe. Here’s a look at the current employment law developments, OSHA standards, and best practices for employers.

The OSHA COVID-19 Vaccination and Testing ETS

In January, the U.S. Supreme Court ruled against a mandate that would have required employees at large companies to be vaccinated or tested weekly. Effective January 26, 2022, OSHA withdrew its COVID-19 Vaccination and Testing ETS. However, OSHA says it has kept the ETS as a proposed rule and still strongly encourages vaccination of workers.

OSHA has also published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” and will update this guidance as needed. This guidance lists 11 ways that employers can help mitigate infection. These best practices include helping workers get vaccinated; instructing workers to stay home when they are sick or might be sick; implementing physical distancing; providing face coverings; training workers on COVID policies; asking others in the area, such as customers, to wear face coverings; maintaining ventilation systems; cleaning and disinfecting routinely; recording and reporting infections and deaths; and protecting workers for retaliation and creating an anonymous process for workers to express concerns over COVID risk. 

These guidelines also state that employers should follow any other applicable and mandatory OSHA standards. For example, OSHA has adopted the Healthcare Emergency Temporary Standard.

State Requirements

Many states no longer require businesses to shut down, switch to remote work, or limit capacity. However, there may still be vaccine, testing, and mask requirements.

According to California’s COVID safety measures website, masks are no longer required indoors, but they are still recommended for most people. Businesses no longer face physical distancing or capacity limits, but employers are still expected to keep customers and workers safe and to follow workplace safety and health regulations.

The revised Cal/OSHA Emergency Temporary Standards have been in effect since January 14, 2022. An FAQ provided by the California Department of Industrial Relations lists the changes, of which there are several. For example, the definitions of “face covering,” “fully vaccinated” and “COIVD-19 test” have changed. Another change involves the period of time that must pass before an employee can return to work after close contact. During an outbreak, employers must provide weekly tests regardless of vaccination status. For more details, see the revised Cal/OSHA Emergency Temporary Standards.

Employers in other states should check with their state for requirements and guidelines. Additional requirements may exist at the city or county level.

Avoiding OSHA Citations

OSHA has announced that it plans to expand its presence in high-hazard healthcare facilities between March 9, 2022, and June 9, 2022. Hospitals and nursing care facilities should be ready.

Employers in other industries should also stay vigilant. As of March 11, 2022, OSHA has issued penalties totaling more than $4 million in connection to COVID-related inspections and violations, and not all of the employers receiving citations are in the healthcare industry.

OSHA says that common COVID-related violations include the following:

• Respiratory Protection (1910.134)
• Recording and Reporting Occupational Injuries and Illnesses (Subpart 1904)
• Personal Protective Equipment (1910.132)
• General Duty Clause

Tips for Protecting Your Workers and

The Centers for Disease Control and Prevention says that many people now have a lower risk of severe illness, hospitalization, and death. However, some people have an elevated risk. Additionally, CNN warns that cases are rising in the UK and Europe and that Dr. Anthony Fauci has said that this could be because of the BA.2 variant, the reopening of society, and waning immunity.

Employers should continue to take steps to protect their workers.

• Don’t abandon safety precautions yet. The pandemic may be fading, but it is not over.
• Follow all applicable standards and guidelines, including those from OSHA, the Centers for Disease Control and Prevention, and state agencies.
• Watch for updates in guidance and standards. Things are not changing as fast as they were in the early days of the pandemic, but the situation is continuing to evolve.
• Encourage workers to stay home when they are sick.
• Encourage testing, vaccination, and masking.
• Reduce the risk of indoor transmission by keeping areas clean, disinfected, and well ventilated.

The COVID pandemic continues to complicate risk management. Keeping up with employment law and OSHA developments can help minimize your exposures. So can the right insurance coverage. Learn more about our business insurance program.