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Updated OSHA guidelines pose new duties for restaurant employers

The revised recommendations suggest one set of protocols for the vaccinated and another for the unvaccinated, suggesting employers will somehow have to keep track.
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Federal and state officials are foisting a new COVID-related responsibility on restaurateurs and other employers: Differentiating between vaccinated and unvaccinated employees.

On the national level, the Occupational Safety and Health Administration (OSHA) issued updated workplace safety guidelines Thursday that essentially require employers to view their workforces as two camps, the vaccinated and unvaccinated.

If all those on the payroll have been inoculated against coronavirus, the establishment can essentially resort to the workplace safety practices it followed in pre-pandemic days, provided there’s no conflict with state or local laws. Workers would no longer be required to wear face masks or maintain six feet of distance from co-workers or customers.

The rules can also be scrapped for areas of the operation that are “well-defined,” or separate from the rest of the facility if all the workers in those distinct stations have been inoculated.

The worker-safety protocols adopted during the pandemic would remain in place for workers who have not been vaccinated. Those recommended measures include providing every uninoculated employee with a face mask.

OSHA also encourages employers to minimize the risk of unprotected employees contracting COVID-19 by minimizing the portion of unvaccinated staff members who are scheduled for a shift.

The agency’s new rules strongly recommend that employers encourage employees to get the vaccine by providing time paid off for rolling up their sleeves.

OSHA’s update does not recommend how a restaurant or other employer should determine which employees have been vaccinated.

That question is about to move from the theoretical to the practical in California, where the administration of Gov. Gavin Newsom has updated the safety protocols for restaurants and other employers. Officials decided   that eating places where all the employees and customers in a room have been vaccinated can cease requiring masks and social distancing. But if any employees or guests have yet to get the shots, every crew member would be required to wear masks.

The California officials suggested they will require restaurants and other employers to keep records of which workers have gotten the shots and which are not protected.  They have yet to reveal how that information should be solicited and retained, but initial mentions of the measure have already stirred some controversy about the invasion of employees’ privacy rights.

New York is expected in the next few days to drop all safety protocols for restaurants. including mask-wearing and social-distancing requirements. Gov. Andrew Cuomo has promised to drop those remaining protocols as soon as 70% of the state’s population has been vaccinated against COVID. By the most recent count, the state is only a few percentage points away from that threshold.

The governor has already rolled back several measures for the inoculated. For instance, customers who have been vaccinated can now eat or drink while standing in an establishment, a measure likely to be mentioned by bars and nightclubs.

New York has a vaccine passport, a phone app, that reveals if the user has been inoculated, as proven by state vaccination records. About 2 million residents have downloaded the free app to date, according to the state.

OSHA was directed to update its COVID-related workplace protocols by President Biden shortly after he took office. The new flight of best practices was released with little fanfare on Thursday.

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