As expected, following recent changes in the Centers for Disease Control (“CDC”) general COVID guidance, and New York achieving its 70% at least begun vaccination threshold, New York State (“NYS”) and the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) have updated their COVID office regulations.
Beginning now in New York, most businesses are no longer required to follow the industry specific reopening guidelines on the New York Forward website, including the guidance on capacity restrictions, social distancing, cleaning and disinfecting health screenings, and contact information for tracing. However, unvaccinated employees and others in the workplace will still need to wear masks and socially distance. Certain industries will need to continue to adhere to the COVID office regulations, including large venues, schools grade 12 and under, public transit, homeless shelters, correctional facilities and healthcare sites. Also, the NYS Departments of Labor and Health are working on industry-specific general airborne infectious disease safety standard templates pursuant to the NYS HERO Act, which may add separate requirements to the workplace.
OSHA, in its newly issued emergency temporary standard, advised that most workplaces where workers are fully vaccinated no longer need to provide any COVID safeguards. To the extent known, the guidance advises that unvaccinated workers, customers, and visitors should wear masks and remain socially distant. OSHA made an exception though for health care workers whose employers must have a virus protection plan in place as to COVID-safety measures (written for those with more than 10 employees), including daily masks/PPE, ventilation, social distancing and screening of employees, patients, and visitors for COVID symptoms, and must record and report COVID cases among workers. The rules also provide health care workers with paid time off for COVID-related absences, including those getting vaccinated and recovering from any COVID shot symptoms. The health care employers with more than 10 employees also must remove COVID positive, suspected positive, or symptomatic employees from the workplace and provide them pay up to $1,400.00 a week for two weeks (or longer if they are sick). Eligible employers may voluntarily opt into the federal FFCRA to receive tax credits for such payments. Health care employees can go maskless indoors only in “well-defined areas where all employees are fully vaccinated” and where COVID-positive people are unlikely to be. The health care employer rules will be in place for six months once they become effective shortly upon publishing in the Federal Register. Health care employers will have two weeks to comply with the new rules, although OSHA has indicated it will use its “enforcement discretion” and not fine those employers who are not fully compliant but are moving towards compliance in good faith. Some Democrats have been critical of OSHA’s new guidance for exempting non-healthcare employers, and further changes are possible.
As always, if you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.