Throughout the United States, employers are weighing whether to have a mandatory vaccination policy for COVID-19. The objective is to bring employees back to work safely and the understandable desire to return to our pre-pandemic status quo.
This post does not advocate in favor or against a mandatory vaccination policy—except to note there may be good reasons not to require it; the law requires accommodation from such a requirement in some circumstances; and there is no clear legal authority to compel employees as a condition of employment to receive a vaccine which has only FDA Emergency Use Authorization. Rather, it’s important to note that the COVID vaccines don’t guarantee restoration of the status quo simply because employers will still be obligated to take other, various precautions.
Specifically, mask mandates and social distancing are still required no matter your employee vaccination rates. In its January 2021 guidance, federal OSHA stated:
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
Since OSHA issued that guidance, the CDC has noted: “A growing body of evidence suggests that fully vaccinated people are less likely to have asymptomatic infection and potentially less likely to transmit SARS-CoV-2 to others. However, further investigation is ongoing.” While this is indeed a promising development, until OSHA amends its guidance (or issues an emergency temporary standard with different requirements), it may rely on an employer’s lack of adherence to the guidance in building a case for a citation under the General Duty Clause or other, more specific standards.
Therefore, until things change, even a 100% vaccination rate for your employees is unlikely to insulate you from an OSHA citation if employees are not wearing masks at work. Employees may be safer with a vaccination mandate, but employers must remain vigilant or they will find themselves vulnerable to OSHA enforcement actions and resulting penalties.
