We are preparing to go to the "masks recommended" phase. Staff would still be required to wear masks in public portions of the building, but not in their non-shared offices. However, for those in shared offices, how do we handle the vaccinated/not vaccinated issue? Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?
I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer. Would we be allowed to do something like that?
[DISCLAIMER: This answer presumes there is no collective bargaining agreement or landlord/municipal host terms that impact the library's flexibility while revising their Safety Plan.]
Okay, with that disclaimer out of the way, here are my "short answers" to these excellent questions:
"[F]or those in shared offices, how do we handle the vaccinated/not vaccinated issue?"
Short answer: Revise your library's current Safety Plan to specify how it has adopted the 5/19 NY Forward Guidelines (for advice on how to do that, please see my "Long Answer," below).
"Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?"
Short answer: I advise requiring proof (for the legal/operational rationale behind this opinion, please see my "Long Answer," below).
"I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer. Would we be allowed to do something like that?"
Short answer: Yes (for more on that, please see my "Long Answer", below!).
Long Answer
This question comes at a good time, since on June 10, 2021, the U.S. Occupational Safety & Hazard Administration ("OSHA") updated its guidance for employers on protecting workers from COVID-19.[1] This new "6/10 OSHA Guidance" speaks to questions like these.
But first, a quick recap.
When the CDC came out with their "surprise" interim guidance for fully vaccinated people on May 13th, 2021 (the "5/13 CDC Guidance"), it took New York six days to incorporate it (into the "5/19 NY Guidance").
OSHA, on the other hand, took a bit more than six days.[2] But by June 10th, here's what they had to say:
CDC's Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.
And from there, OSHA takes it granular.[3]
The 6/10 OSHA Guidance sets out an array of factors for employers and workers to not just consider in isolation, but to think about as a continuum of risk assessment and safety measures. The factors they list include consideration of vaccination status, and shared office space.
Because it is so critical that employers get this right, I am putting this "6/10 OSHA Guidance"[4] below. Now that we have this resource, I strongly advise employers to refer to it when updating their Safety Plan to include the 5/19 NY Guidance.
And now, for this library's very specific set of questions about non-public, shared office space, here is the rest of my "long answer."
As you can see in OSHA's listing, the consideration of shared office space isn't simply one of vaccination and proximity. It also involves the consideration of things such as ventilation, worker education, and individual worker vulnerabilities.
Because of this, there is no "one size fits all" answer to this library's question. Rather, the library should review the non-public, shared workspace against the OSHA criteria, and then craft a customized plan...recognizing that the protocol for areas with up-to-date HVAC systems will be different from a work area near the stacks where there might be very little fresh air.
This variability is the key consideration of shared non-public workspace. Your library's safety measures may be different when the weather is cold and workers can't open a window. Your library's Safety Plan measures may be limited if the workspace is near a rare book collection or other assets requiring precise climate control. And on top of that (literally, as an add-on after the fact) your library will need to consider the impact that a Safety Plan's working conditions can have on individuals with disclosed, pre-existing conditions (such as allergies, heightened vulnerability to COVID, or a health condition impeding vaccination).[5]
Within all this variability (which is a LOT for any employer to handle, to say nothing of a library that is also focusing most of its energy on meeting the needs of the public), I advise requesting proof of vaccination for two reasons. First, it positions an employer to be more confident in their adherence to the plan they develop. Second, it positions employees to be confident that they are in a position to advocate for their own health.
Now, on the flip side, the employee relations challenge of requiring workers to provide vaccination status can be onerous. Some people are just not comfortable revealing that type of information, and I totally get it. BUT the EEOC and the New York State Division of Human Rights have both determined that an employer requesting proof of vaccination is not the same as an employer demanding disclosure of confidential medical information.[6] Barring a union contract or other term forbidding the demanding proof of vaccination, employers should be confident they can require it.
That confidence can, in turn, transfer to the employees who are certain that their unmasked and nearby co-workers are vaccinated. In my experience, nothing can erode trust like an honor system where someone is suspected of being dishonorable. Further, that suspicion can turn into full-on blame if a worst-case scenario emerges and someone does get sick.
And while the current CDC and NY Forward guidance mean an employer won't likely be successfully sued for using the honor system as opposed to requiring proof, I wouldn't put it past one of my fellow attorneys to try.[7] This is especially true if your library's Safety Plan or past planning has identified certain front-facing work or other tasks as "higher" risk, meaning there is an acknowledgement on the record that some work may bring increased exposure.
Okay, to sum up: you don't have to, but it's worth considering requiring proof of vaccination. But most critically, whatever your library does, if you update your Safety Plan, factor in the new 6/10 OSHA Guidance.
Since the combination of options is extensive (New guidance? Old? Require vaccinations? Proof?) I have laid out a chart below. Below that are some of the high points of the 6/10 OSHA Guidance, which every employer should read.
I hope this reply makes up for in helpfulness what it poses in complexity. I wish you calm and careful planning as your library moves into this next phase.
Safety Plan -->
Employee requirement --> |
No Use of NY Forward 5/19 guidance[8] |
Updated to NY Forward 5/19 guidance and uses "honor system" only for employees |
Updated to NY 5/19 guidance and library requires proof of vaccination for employees |
|
Employee vaccination status not considered in Safety Plan |
This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.
|
Not possible (if using 5/19 guidance, the library must consider vaccination status). |
Not possible (if using 5/19 guidance, the library must consider vaccination status). |
|
Employee vaccination status considered in Safety Plan but vaccination is not required to perform routine duties of job |
This means your library is still using your pre-May 19th Safety Plan; that's fine, just stick to it until it is updated.
|
If your library is using the honor system, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on! |
If your library is requiring proof of vaccination to use 5/19 guidelines, but still structured so vaccination is not a factor in performance of routine duties, so long as the OSHA 6/10 guidance doesn't suggest otherwise, carry on! |
|
Library-employer requires vaccination as part of Safety Plan and vaccination is required to perform routine duties of job. |
With such rigorous requirements, assessing the Safety Plan under the OSHA 6/10/21 guidance is wise.
|
This combination brings some risk since it bases safety on vaccination but does not require proof, which limits the ability to assuage employee relations concerns regarding unvaccinated colleagues. |
This combination provides the best documentation of maximum risk management and positions library to address employee relations concerns regarding unvaccinated colleagues. |
|
OSHA
Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 2
Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:
Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.
At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.
Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.
Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.
When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.
For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.
Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.
For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.
In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.
In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.
Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.
In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.
Appendix: Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers
Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:
In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.
In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:
In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:
In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:
Unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.
[1] While not every library is covered by OSHA regulations, OSHA's standards are a "go-to" for protecting workers, and much of New York's guidance on COVID safety refers employers to their materials.
[2] Considering what's at stake, I appreciate that.
[3] "Granular:" a tired buzzword, I know. What word/phrase would I have used pre-2014? "Particular?" "Minutely specific?" Look at all that CDC minutia! Sometimes "granular" really does get the job done.
[4] Found at https://www.osha.gov/coronavirus/safework as of June 14th, 2021.
[5] I once worked in a dampish half-basement that had a window that would open onto a thriving crop of ragweed. In the winter, the mold from the damp got activated by the heating units. Hello, allergies!
[6]https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
[7] This is how the law changes, after all.
[8] This means no relaxing of social distancing and face-covering rules; they are at pre-May 19th levels.
Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Masks, Safety Plan