VOSH Begins the Process of Withdrawing its “Permanent” COVID-19 Rule

By Conn Maciel Carey LLP’s COVID-19 Task Force

Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule.  Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.

Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Trackerwhich depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

  • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
  • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

CDC Updates Mask Recommendations for Fully Vaccinated Individuals

By Conn Maciel Carey’s COVID-19 Task Force

We have an unfortunate update to share out of the CDC today.  Short story, do not throw away your “Masks Required” signs.

What Did the CDC Change About Mask Recommendations?

Earlier today (July 27th), the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People,” in which the CDC recommends:

  • fully vaccinated people wear masks in public indoor settings in areas where there is substantial or high transmission;
  • fully vaccinated people can choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated; and
  • fully vaccinated people who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Although the guidance speaks in absolutes, we think that the general limitations that have applied to all prior mask mandates throughout the pandemic continue to inform this updated guidance; i.e., “public indoor settings” is intended to cover locations where there is the potential for exposure to another individual, and not where an employee is “alone in a room” or “alone in a vehicle.”

Is Your County Experiencing Substantial or High Levels of Transmission?

To determine whether your workplace is in a county experiencing substantial or high transmission of COVID-19, the CDC uses two different indicators, the higher of which prevails:

  1. total new cases per 100,000 persons over the past seven days; and
  2. positive test rate over the past seven days.

Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading