Issue link: http://palletcentral.uberflip.com/i/1370374
30 PalletCentral • May-June 2021 palletcentral.com OSHA By Adele L. Abrams, Esq., CMSP COVID-19: VACCINES & WORKPLACE SAFETY The rules keep changing, but here is a good guide on vaccines and employee workplace initiatives. C OVID-19 vaccines are here, and while many people have waited impatiently for their turn to get the "jab" of one of the three vaccines now approved by the US Food & Drug Administration under their Emergency Use Authorization (EUA) rules, nearly as many people are resisting getting vaccinated for a variety of reasons: religious, health-related, political, or wariness about the safety of these fast-tracked medications. Some of these vaccine resisters may work for you (or be you)? What are the employer's rights and responsibilities concerning mandated COVID-19 vaccination programs in the workplace? What rights do employees have if they refuse to undergo vaccinations that may be a term and condition of employment? What does it really mean to be "fully vaccinated"? It's complicated. Moreover, because the three products approved under the EUA rules are "emergency" drugs, employer mandates will likely be found invalid – at least outside of the healthcare and emergency services sectors – and even the military cannot force vaccines due to provisions in the Geneva Convention! At the present time, there is no federal COVID-19 standard although the Occupational Safety & Health Administration (OSHA) is scheduled to make a decision in March 2021 on whether to proceed with an Emergency Temporary Standard (ETS) that OSHA could enforce and fine employers up to $136,532 per affected employee. Currently four "state plan states" – Virginia, Michigan, Oregon & California – have enforceable COVID-19 ETSs, and Virginia's became permanent in January 2021, with all provisions in place by the end of March. Absent an enforceable rule, federal OSHA and the remaining state plan states have used the "General Duty Clause" or "GDC" (a gap filler where no standard applies, based on Section 5(a)(1) of the Occupational Safety & Health Act) or PPE/ respiratory protection and sanitation standards as the citable regulations applicable to COVID-19 workplace transmission hazards. OSHA is not using the GDC pertaining to any vaccination programs at this point, nor do any of the four state COVID ETSs include any provisions concerning vaccination, even in their "return to work" dictates. erefore, the issue of mandating worker COVID vaccinations is largely governed by employment law and workers' compensation considerations at this point – with a side order of tort law possible. e four state plan states' ETSs were all enacted before there were approved vaccines, so this explains their silence on the issue and their focus on social distancing, different levels of face coverings or actual respiratory protection, doing an analysis of the workplace and triaging it into very high, high, medium, and low-risk work sectors, and reliance on the hierarchy of engineering controls (ventilation, barriers), work practice and administrative controls such as remote work or staggered work shifts and breaks, worker training, written hazard control programs, and PPE/face coverings where other respirators are not already being worn.