OSHA Issues Updated COVID-19 Guidance

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“Guidance”), to bring it in line with the most recent recommendations published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021, which were updated in view of the Delta variant.

The updated Guidance is designed to help employers (outside of healthcare) protect workers who are “unvaccinated” or otherwise at risk, and differentiates, in certain respects, as to recommendations for unvaccinated and vaccinated employees, with vaccinated employees not subject to the same level of precautionary measures as their unvaccinated peers.

The Guidance recommends that employers engage with their employees – and, where applicable, employee representative associations – to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk employees, and to mitigate the spread of COVID-19 at the workplace. The recommended interventions are summarized, in part, below:

• Facilitating Vaccinations: Employers should grant employees paid time off to obtain the COVID-19 vaccine and to recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations in the workplace and should adopt policies that require employees to either get vaccinated or undergo regularly scheduled Covid testing in addition to mask wearing and physical distancing precautions.
• Directing Employees to Stay Home: Employers should direct their employees to stay home from work if they have or are experiencing symptoms of COVID-19. The recommendations concerning employees who are exposed to COVID-19 differ based on whether an employee is fully vaccinated or not vaccinated. If an unvaccinated employee has had close contact with someone who has tested positive for COVID-19, the employee should be told not to come to work; tested immediately after being identified; and, if negative, tested again either five to seven days after his or her last exposure or immediately if symptoms develop during quarantine. If, however, an employee is exposed to COVID-19 and is fully vaccinated (and has no COVID-19 symptoms), he or she should get tested three to five days after exposure and wear a mask in public indoor settings for 14 days or until he or she receives a negative test result. Employers must also make certain that employee absences due to COVID-19 are non-punitive and should consider revising any policies that could be reasonably construed as encouraging workers to physically enter the workplace while sick.
• Physical Distancing in Communal Work Areas: A key way to protect unvaccinated and at-risk workers from COVID-19 is to physically distance them from other workers and clients, and generally, six feet of separation is recommended (although not a guarantee of safety, particularly in enclosed or poorly ventilated spaces). Employers could also limit the number of unvaccinated or at-risk workers in one place at any given time, such as, among other things, by encouraging remote work where possible, staggering shifts, or implementing flexible hours for such workers.
• Face Coverings: Employers should provide employees with face coverings or surgical masks, as appropriate, unless their work assignments require respirators or other forms of personal protective equipment (PPE), in accordance with CDC recommendations. In addition and consistent with the CDC’s current recommendations, even fully vaccinated employees should consider wearing face coverings in public indoor settings in areas of substantial or high transmission. Workers who work outside may opt not to wear face coverings outside unless they are at risk (e.g., immunocompromised). Under antidiscrimination laws, an employer may need to provide a reasonable accommodation for an employee who cannot wear a face covering for medical or religious reasons. To the extent workers are in settings where face coverings may increase the risk of illness (indoors or outdoors), employers should consult with OSHA specialists.
• Training: Employees should communicate workplace policies “clearly, frequently” and using “multiple methods,” and they should provide training to managers on how to implement Covid-related workplace policies. All communications to employees on Covid-related policies should be in “plain language” (e.g., non-English languages and ASL as applicable) that workers understand and in a manner accessible to individuals with disabilities. Training should be directed towards not only employees but also contractors, visitors, and any other individuals on site and should include: (1) basic facts about the COVID-19 virus, including how it is spread and preventative tactics; and (2) details on workplace policies implemented to protect workers from COVID-19. In addition, employers should ensure that workers understand their right to a “safe and healthful” environment, whom they should contact with questions about workplace safety and health, and their right to be free from retaliation for raising any concerns.
• Visitors: Employers should suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces, such as retail establishments, and in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings even where not required by the employer’s jurisdiction.
• Ventilation: Improving ventilation is a key strategy that could be used by employers as part of a multilayered approach to reducing the concentration of virus particles in indoor air and mitigating the risk of transmission – particularly to unvaccinated employees and those at risk. Employers should consider maintaining ventilation systems in accordance with the CDC’s Ventilation in Buildings guidance and the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
• Cleaning and Disinfection: If someone who has been in a facility within 24 hours has a suspected or confirmed case of COVID-19, employers should follow CDC cleaning and disinfection recommendations for that facility. Employers are required to follow mandatory OSHA standards for hazard communication and PPE appropriate for exposure to cleaning chemicals.
• Recording and Reporting Requirements: Employers are required by mandatory OSHA rules to record work-related cases of COVID-19 to OSHA where the following criteria are met: (1) the case is a confirmed case of COVID-19; and (2) the case is work-related and involves one or more relevant recording criteria under OSHA record-keeping requirements. Employers must also follow OSHA reporting requirements as to fatalities and hospitalizations resulting from Covid. Employers should also report outbreaks to local health departments as required and provide support with any contact tracing efforts.
• Anti-Retaliation: Employers are reminded that they are prohibited from retaliating against employees for engaging in occupational safety and health activities, such as, for example, raising concerns about infection controls related to COVID-19, or voluntarily providing or wearing face coverings or other PPE. Employers should implement procedures that facilitate employee reporting of potential workplace safety issues, such as through an anonymous hotline.

The above is a summary of the updated guidance and is in no way intended to be all-inclusive.

Employers should continue to stay updated on federal, state, and local guidance and compliance requirements concerning Covid and update their policies and practices as needed to ensure legal compliance.

We also note that President Biden has outlined a COVID-19 Action Plan, which, among many other things, will require any employer with 100 or more employees to ensure its workforce is fully vaccinated or subject to weekly COVID-19 testing. OSHA will be issuing an Emergency Temporary Standard to meet this requirement.

If you have any questions about this blog post, please reach out to an attorney in the firm’s Employment & Labor Law Group.