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Employer Update: New OSHA Guidance and MIOSHA Recommendations to Protect Workers

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Karl W. Butterer and Cody A. Mott
Foster Swift Labor & Employment Law News E-blast
August 30, 2021

COVID Testing FormOn Friday, August 13, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued its new “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The updated guidance, which is advisory in nature, contains a number of recommendations meant to assist employers with protecting their unvaccinated employees.

The guidance does not apply to healthcare workers who are covered by OSHA’s “COVID-19 Emergency Temporary Standard for Healthcare.” Although primarily intended to help employers and employees located in areas of substantial or high community transmission, the guidance can help protect both vaccinated and unvaccinated workers here in Michigan.

Updated OSHA Recommendations

OSHA updated its guidance for employers to reflect recent recommendations issued by the Center for Disease Control (CDC) for fully vaccinated people. The purpose of the new CDC guidance is to (a) reduce the risk of vaccinated individuals potentially spreading the Delta variant to others, including unvaccinated individuals, and (b) reduce the risk of vaccinated individuals becoming infected with the Delta variant. Those recent CDC recommendations for fully vaccinated people include:

  • Wearing a mask in public indoor settings when in areas of substantial or high transmission;
  • Choosing to wear a mask regardless of level of transmission particularly if the individual is at risk or has someone in their household who is at increased risk of severe disease or not fully vaccinated; and
  • Getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings until receiving a negative test result or for 14 days after exposure.

Employers can also reduce the likelihood of COVID-19 spreading by:

  • Facilitating vaccinations for employees. This includes granting paid time off for getting and recovering from the vaccine, adopting policies requiring employees get vaccinated (or wear a mask and get tested if they choose to remain unvaccinated), and providing information to employees on how to obtain a vaccination.
  • Telling workers who are infected or who have had close contact with someone who tested positive for COVID-19 to stay home from work until the worker has tested negative or quarantined for 14 days.
  • Implementing physical distancing in all communal spaces. This can be done by staggering start times, offering work-from-home options, or placing physical barriers between workstations.
  • Providing workers with face coverings or surgical masks and requiring them to be worn.
  • Maintaining ventilation systems to increase airflow in the workspace or using portable air cleaners with High Efficiency Particulate Air filters.
  • Performing routine cleaning and disinfection.

Some businesses may be eligible for tax credits under the American Rescue Plan Act if they provide time off for employees to get vaccinated, quarantine, or care for a sick relative. Please contact your Foster Swift attorney to determine your eligibility.

Regardless of the employer’s health and safety protocols, unvaccinated employees can mitigate their risks by getting the COVID-19 vaccine, wearing a proper face covering when indoors, maintaining social distancing, and practicing good personal hygiene.

Legal Challenges to Vaccine Mandates

OSHA suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated. In general, employers, including both public and private employers, can require employees who physically enter the worksite to be vaccinated for COVID-19. While it is likely such mandates face legal challenges, at least one federal court has upheld a university’s vaccine mandate.1 The federal court’s decision was upheld by the U.S. Court of Appeals for the 7th Circuit. The Supreme Court declined to review the appellate court’s decision.

Indiana University is requiring all students and staff members on campus to be fully vaccinated for COVID-19. This requirement was recently challenged in the U.S. District Court for the Northern District of Indiana where a federal judge upheld the mandate. In its opinion, the court noted the Supreme Court had previously ruled in 1905 that members of the public could be required to be vaccinated against smallpox and that numerous other vaccine mandates have survived legal challenges. Furthermore, the vaccine mandate offers exceptions for religious, medical, or ethical reasons. Moreover, students are not forced to take the vaccine, they each have the option to apply for an exemption or find a new school to attend.

This ruling builds on two earlier Supreme Court cases allowing for mandatory vaccinations with exemptions. First, in 1905, the Supreme Court upheld a requirement that each citizen of Massachusetts be vaccinated against smallpox.2 Second, the Supreme Court reaffirmed its prior decision in 1922 by upholding an ordinance that required school children to be vaccinated before attending public school.3

Although in a university setting, this case is illustrative of how courts may rule on legal challenges to an employer’s vaccine mandate. The court notes students are not forced to take a vaccine, instead they can apply for an exemption or transfer. Private employers that offer similar exemptions will have a stronger argument that their vaccine mandate does not violate an employee’s constitutional rights.

Applicability to Your Business

It is important to note that OSHA does not directly regulate Michigan businesses or public sector employers. Instead, Michigan has an OSHA-approved state plan, which allows it to adopt its own laws and regulations so long as such laws and regulations are at least as effective as the federal regulations.

Michigan, through the Michigan Occupational Safety and Health Administration (MIOSHA), is required to adopt policies that are identical to OSHA requirements or are at least as effective. Michigan can adopt more stringent requirements if it so chooses.

Michigan has not yet adopted OSHA’s most updated guidance on preventing the spread of COVID-19 in the workplace. However, MIOSHA is strongly encouraging Michigan employers to follow the recently updated CDC guidelines (discussed above) on which the OSHA guidance is based. If OSHA were to adopt new regulations and standards for the workplace, it is likely Michigan will do the same. Until then, compliance with both the CDC guidelines and MIOSHA’s recommendations is voluntary.

If you have further questions about the OSHA guidance or vaccine mandates, please contact a Foster Swift labor & employment law attorney today.

1 See Klaassen et al. v Trustees of Indiana University, __ F3d __ (2021).

2 Jacobson v Massachusetts, 197 U.S. 11 (1905).

3 Zucht v King, 260 US 174 (1922).