This is an update to Holland & Knight's previous blog, "Employers May Encourage Employees to Receive COVID-19 Vaccine, But Requiring it Raises Issues," April 26, 2021.

The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance to address unvaccinated and otherwise at-risk workers in the non-healthcare workplace, suggesting best practices to protect these workers from COVID-19 transmission. (See previous Holland & Knight alert, "OSHA Issues New Employer COVID-19 Guidance Regarding Unvaccinated and At-Risk Workers," June 30, 2021.)

Beyond the more general recommendations, the guidance includes an appendix focused on best practices for high-risk workplaces such as high-volume retail shops, where there is heightened risk of transmission of COVID-19 because of the following factors:

  • Close Contact: Unvaccinated and at-risk workers work closely to one another
  • Duration of Contact:" Unvaccinated and at-risk workers have continued contact with coworkers for an extended period of time
  • Type of Contact: Unvaccinated and at-risk workers are likely to be exposed to the virus through respiratory droplets or contaminated surfaces

In these workplaces, including high-volume retail, OSHA recommends that employers adopt additional practices to protect unvaccinated and at-risk employees. These include staggering break, arrival and departure times; providing visual cues as a reminder to practice social distancing; and implementing strategies to improve ventilation.

The report also recommends practices specifically tailored toward high-volume retail. In these workplaces, OSHA recommends that employers:

  • encourage mask-wearing by customers who are unvaccinated or whose vaccination status is unknown
  • enforce social distancing, and use barriers between workspaces if social distancing is not possible
  • move credit card readers further away from unvaccinated or at-risk workers, so that there is increased distance between these workers and retail customers
  • shift the primary stocking activities of unvaccinated or at-risk workers to off-peak or after hours to reduce these workers' contact with customers

The new OSHA guidance states that most employers are no longer required to take measures to protect workers who are fully vaccinated against COVID-19 and are not otherwise at-risk workers from COVID-19 exposure. OSHA recommends that employers encourage vaccination, providing paid-time off for employees to get vaccinated.

Finally, in a departure from prior guidance (see previous Holland & Knight blog, "New OSHA Guidance for Recording Obligations When Mandating Vaccination," May 11, 2021), OSHA's newly issued guidance provides that it "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."