Although the Wisconsin Supreme Court ruled on March 31, 2021 that the Governor’s successive masking orders were unlawful, employers in Wisconsin have been uncertain about their duties, under the Occupational Safety Health Act (OSHA), to maintain a safe workplace concerning COVID-19.

On June 10, 2021, OSHA issued an update to its COVID-19 guidance, including a COVID-19 emergency temporary standard that concerns the healthcare industry and updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for Non-Healthcare Industries.

The updated guidance applies to industries other than healthcare.  It reiterates the following:

Unless otherwise required by federal, state, local, tribal or territorial laws, rules and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

The updated guidance focuses only on protecting unvaccinated or other at-risk workers in their respective workplaces.

Employers should be aware that the OSHA guidance refers to workplace safety standards.  The U.S. Equal Employment Opportunity Commission (EEOC) still regulates what qualifies as a medical inquiry for purposes of the Americans with Disabilities Act (ADA).  As the nation continues to recover from the COVID-19 pandemic, and barring adverse effects of new strains, employers and employees can generally expect a return to normalcy under the ADA.  This will mean a heightened standard of review by the EEOC with respect to how and when employers ask questions relating to the health of their employees.

For further information or additional discussion points, contact your Anderson O’Brien, LLP attorney.


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