Delta Variant Prompts Mandatory Vaccinations and Mask Requirements

August 3, 2021 | Brian S. Conneely | John K. Diviney | Employment & Labor

The Delta variant, which increased COVID cases and hospitalizations, also prompted new federal and local COVID rules and mandates, and required employers to revisit their existing COVID policies.

OSHA announced a new COVID Emergency Standard for health care employers to take effect in July 2021. This new Emergency Standard requires health care employers to address a number of issues concerning COVID safety in their workplaces. Health care employers with ten or more employees must adopt a written COVID safety plan and designate specific safety coordinators and specific hazard assessments for each workplace. The OSHA website contains a COVID Template, a COVID Healthcare Worksheet Checklist and Employee Job Hazard Analysis, Sample COVID Log, advice regarding reporting to OSHA of fatalities and hospitalizations, an employer notification tool, employee training tools and OSHA inspection instructions.

Additionally, OSHA issued COVID guidelines in June 2021 for workplace safety for all employers. Unlike the COVID Emergency Standard for healthcare employers, these new OSHA guidelines are not mandatory. Failure to adhere to these OSHA guidelines, however, could lead to potential claims of violations of OSHA’s general duty clause for employers to provide a safe workplace.

The Delta variant and the substantial surge in COVID cases and hospitalizations have also prompted federal and local governments and private employers to issue new requirements regarding vaccinations and masks. In fact, the CDC just issued recommendations that both vaccinated and unvaccinated individuals wear masks in indoor public areas, schools and geographic areas where COVID infection rates are high.

Employers are also considering mandatory vaccination requirements for employees and/or special requirements for unvaccinated employees. In addition, the federal government and private employers have increased vaccination requirements and restrictions and have offered incentives for new vaccinations. Mandatory vaccination requirements have thus far survived legal challenges in federal court. Moreover, recent EEOC guidelines and a recent FDA opinion also appear to indicate that mandatory vaccination programs by employers are permissible, subject to certain exceptions for medical reasons and religious beliefs. On the other hand, some states have passed state laws restricting employers and businesses from taking adverse actions against or imposing certain restrictions on unvaccinated individuals.

Employers and businesses should review and update their existing COVID plans and policies in light of these new developments and should closely monitor and promptly respond to any further developments concerning COVID.

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