By Alexandra Lapes and Tracey I. Levy

As of June 15, 2021 New York State has lifted its general health guidance and New York Forward industry specific guidelines – including social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, screening, and contact information for tracing.  Those guidelines are now optional for most establishments including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services.  Businesses are now free to choose whether they want to lift all or some restrictions, continue to adhere to the State’s archived guidance, or implement other health precautions for their employees and visitors, clients and customers.  The only remaining requirement under New York State law is that unvaccinated individuals wear masks and employers have masks available for those individuals.

OSHA Protections Remain in Effect

Significantly, the lifting of New York State restrictions does not relieve employers of their obligations to meet safety and health standards under the Occupational Safety and Health Act (“OSHA”), which have their own restrictions.  Where all employees are fully vaccinated, OSHA’s most recently issued guidance relieves most employers of taking specific steps to protect their workers from COVID-19 exposure in the workplace.  But many workplaces have not achieved full vaccination status, particularly when considering the presence of clients, customers or other visitors to their work premises, and employers therefore need to ensure they meet the following standards:

• Perform routine cleaning and disinfection – if someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations and mandatory OSHA standards for hazard communication and PPE appropriate for exposure to cleaning chemicals;
• Record and report COVID-19 infections and deaths – employers are responsible for recording work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Employers should also report outbreaks to health departments as required and support their contact tracing efforts.
  • Note, OSHA prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 or a work-related illness.
• Follow other applicable mandatory OSHA standards – all of OSHA’s standards that apply to protecting workers from infection remain in place.
• Take a multi-layered approach to protect the unvaccinated and otherwise at-risk workers – OSHA advises employers to engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and to mitigate the spread of COVID including, but not limited to:
  • Granting paid time off for employees to get vaccinated;
  • Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who test positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work to prevent and reduce the transmission of COVID-19;
  • Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
  • Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks at no cost, unless their work task requires a respirator or other PPE;
  • Educating and training workers on the businesses’ COVID-19 policies and procedures using accessible formats and in language they understand;
  • Suggesting unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or at-risk workers in the workplace likely to interact with these patrons;
  • Maintaining ventilation systems;
  • Implementing protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
  • Taking 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: close contact, duration of contact, and type of contact.

Certain industries such as health care settings and public transportation, should be mindful of OSHA’s Emergency Temporary Standards, which impose additional requirements.

CDC Mask Guidance Updated

The Centers for Disease Control and Prevention (“CDC’) has advised that fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. Fully vaccinated people also can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter.

Key Takeaways

Employers should continue to monitor CDC and OSHA guidance and anything specific to their industry, and in particular be mindful of OSHA guidance with regard to precautions for unvaccinated individuals.  Employers can adopt their own precautions that include requiring masks and six feet of social distancing for employees and patrons within their establishments, regardless of vaccination status, provided accommodations are made as required for those who cannot be continually masked for medical reasons.  As previously discussed in our recent blog article, New York State also requires businesses to develop a written business safety plan to outline how their workplaces will prevent the spread of COVID-19 and other airborne diseases going forward, and the state’s model safety plan is expected to be released in the coming weeks.