Many manufacturing companies had individuals who worked in person through a large majority of the COVID-19 pandemic. Because of this, you have been forced to think about some safety and health issues you likely never imagined. With the “rules” changing regularly, it has been a challenge to keep up! As we move into or continue working through the next phase—returning more employees to the workplace—employers need to keep their eyes on not only the ongoing safety and health issues, but also on some other legal issues that may impact the processes you follow when you return to the workplace.

When my employees return, what will we need to do to protect our workforce?

During the height of the pandemic, employers were forced to piece together information from a variety of resources, including guidance from the Occupational Safety and Health Administration (OSHA). The primary focus has been the General Duty Clause, which requires that employers provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA did not create any formal COVID-19 standard until June 10, 2021, when it issued both emergency temporary standards (ETS) on COVID-19 for health care employers, along with some general guidance that applies to other employers, including manufacturers.

While OSHA’s guidance does not impose mandatory obligations upon non-health care employers, it does serve as a roadmap to protect workers. Within the guidance, OSHA encourages 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 mitigate the spread of COVID-19.” OSHA also recommends the following:

  1. Granting paid time off for workers to get vaccinated. (If you have fewer than 500 employees, you may be eligible for a tax credit if you provide paid leave for the full list of reasons required for the Paid Sick Leave tax credit.)
  2. Instructing workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home.
  3. Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
  4. Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks.
  5. Educating and training workers on COVID-19 policies and procedures using accessible formats and languages they understand.
  6. Suggesting that unvaccinated customers, visitors, or guests wear face coverings.
  7. Maintaining ventilation systems.
  8. Performing routine cleaning and disinfection.
  9. Recording and reporting COVID-19 infections and deaths.
  10. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 related hazards.
  11. Following other applicable mandatory standards such as PPE requirements, respiratory protection, sanitation and access to medical and exposure records.

While most of these steps are not mandatory, they are useful tools that you may implement to protect your workforce. You should plan in advance and determine what tools you will use when your employees return, how they will be implemented and enforced and, if you choose not to follow one of the OSHA-recommended steps, be able to explain why it is not needed in your workplace.

Can we (and will we) ask our employees whether they are vaccinated?

You can ask your employees to disclose whether they are vaccinated. If you do so, you need to treat the information in a confidential manner, only disclosing it to those who need to know. You can also ask that employees provide you proof of their vaccination status, if desired. While public employers in Indiana cannot require proof of vaccination, private employers can.

The more challenging question may be: Do you really want or need to know? Because the OSHA guidance focuses on protecting the unvaccinated, unless you plan to treat every employee the same —e.g.., requiring masking when employees are around other employees, customers, etc.—asking the question may be important for your safety plan. This does not necessitate mandating the disclosure or mandating vaccines. (I suggest consulting with counsel, particularly before mandating the vaccine, as there are exceptions needed and potential risks to consider.) The disclosure can be entirely voluntary as part of the overall safety plan. For example, your plan can state that, if an employee voluntarily discloses they have been vaccinated and provides proof, the employee can return to the office without wearing a mask. Similarly, if you want to know what percentage of your employees are vaccinated so you can make some informed decisions about your safety protocols, you can ask employees to report their vaccination status anonymously or otherwise.

These and many other questions—such as whether hybrid work is a good solution for your business and your employees—should be addressed before returning your employees to the workplace. As with many employment-related matters, pre-planning can help avoid unnecessary stress for both your business and the employees on which you rely.

If you have further questions, please contact Tami Earnhart or any member of Ice Miller’s Labor and Employment team. For more information, visit the Ice Miller COVID-19 Resource Center.

This publication is intended for general informational purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstance.