OSHA’s COVID-19 Updated Workplace Guidance – What Employers Need to Know

By Fiona W. Ong - Shawe Rosenthal LLP

June 10, 2021

On June 10, 2021, the federal Occupational Safety and Health Administration issued updated guidance for businesses on COVID-19 prevention and mitigation – taking into account the impact of vaccinations – along with a long-awaited Emergency Temporary Standard (ETS) applicable only to healthcare (which is not discussed in this update).

Of particular note regarding the guidance, OSHA states that “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. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” (Emphasis added). OSHA encourages employers to make it easier for employees to become vaccinated.

Information for Workers. OSHA continues to reiterate that workers should maintain a distance of at least six feet from others (if possible), wash hands, cover their nose and mouth with a tissue or elbow when sneezing or coughing, and use face coverings. OSHA emphasizes that face coverings do not eliminate the need for other measures, such as distancing or handwashing, and should still be worn even after vaccination, given the uncertainties as to how vaccination affects transmissibility. Workers should also ask their employers about other steps that have been taken in their workplace.

The Employer’s Responsibilities. As noted previously, OSHA states that employers with fully-vaccinated employees need not take steps to protect those workers. As to the unvaccinated and those vaccinated who nonetheless continue to be at-risk, presumably due to underlying health conditions, OSHA sets forth a number of steps that employers should consider, preferably in consultation with employees and/or their representatives (such as a union):

•    Grant paid time off for vaccinations. OSHA notes that smaller employers (those with under 500 employees) may be eligible for a tax credit to provide paid leave for vaccinations and any adverse effects (through September 30, 2021).
•    Instruct infected workers, unvaccinated workers in close contact with a COVID-19-positive individual, and those with COVID-19 symptoms to stay home.

•    For exposures, the current CDC recommendation is to quarantine for at least 7 days, if testing is done after the 5th day following exposure, and for 14 days without testing.
•    According to the CDC, those testing positive with symptoms should continue isolation (and thereby not return to work) until they are fever-free for at least 24 hours without the use of fever-reducing medicines, there has been an improvement in symptoms, and at least 10 days (up to 20 for those with severe illness) have passed since symptoms first appeared.
•    As for those testing positive without symptoms, the CDC states that they may return to work when at least 10 days have passed since the date of their first positive COVID-19 diagnostic test.

•    Implement physical distancing (at least 6 feet) for unvaccinated/at-risk workers in communal work areas. OSHA also suggests minimizing contact through telework, flexible work hours, and virtual technologies, among other things. Where distancing is not possible, employers should consider transparent shields and other solid barriers.
•    Provide face coverings or surgical masks at no cost, unless respirators or other PPE is required. Reasonable accommodations to a masking requirement may need to be provided to workers for disability or religious needs, and clear masks may be necessary to enable hearing-impaired workers to lip read.

•    Masking is not required outdoors, unless mandated by state or local requirements.
•    Employees should be permitted to use masks if they so wish, regardless of vaccination status.
•    If the employer determines that PPE is necessary, it must be provided in accordance with relevant mandatory OSHA standards.

•    Educate and train workers on the employer’s COVID-19 policies and procedures, using accessible formats and in the language spoken by the workers. Managers should be trained on how to implement the policies and procedures.

•    Worker training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene. It should also include policies and procedures implemented to protect them.
•    Employers should also ensure that workers understand their right to a safe workplace, whom to contact with workplace safety concerns, and their right to be free from retaliation for raising such concerns.

•    Suggest that unvaccinated customers, visitors, and guests wear face coverings if there are unvaccinated/at-risk employees in the workplace. OSHA suggests posting a notice.
•    Maintain ventilation systems. OSHA notes that some measures to improve ventilation are discussed in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.

•    Key measures include proper HVAC operation, complying with inspection/maintenance schedules, maximizing outdoor air supplies, installing air filters meeting certain efficiency standards, and considering the use of HEPA filters.

•    Perform routine cleaning and disinfection, with enhanced protocols in compliance with CDC recommendations if someone infected with or exhibiting COVID-19 symptoms has been present within the past 24 hours.
•    Record and report COVID-19 infections and deaths that are work-related, as required by OSHA.

•    Employers must record work-related COVID-19 cases on Form 300 if: (1) COVID-19 is confirmed; (2) it is work-related; and (3) it meets the criteria for recording (e.g. medical treatment beyond first aid, days away from work).
•    OSHA states that, at least through May 2022, employers will not be required to record any adverse effects from the COVID-19 vaccine that would otherwise meet the recording requirements.
•    As for reporting requirements, employers must report (within 24 hours) hospitalizations that occur within 24 hours of the work-related exposure to COVID. Employers must report (within 8 hours) any fatalities that occur within 30 days of the work-related exposure to COVID-19.

•    Implement protections from retaliation and set up an anonymous process to report COVID-19 health hazards.
•    Comply with other applicable OSHA Standards, such as PPE, respiratory protections, sanitation, protection from bloodborne pathogens, and access to medical and exposure records. Healthcare employers must also comply with the new Emergency Temporary Standard.

Measures for Higher-Risk Workplaces. In addition to the above general recommendations, OSHA offers measures for higher-risk workplaces with a mix of vaccinated and unvaccinated workers. Factors in determining whether a workplace is higher risk include close contact between workers, duration of contact, types of contact, and other “distinctive factors” (such as employer-provided shared transportation, frequent contact with unvaccinated individuals in areas with high community transmission, and communal worker housing). Examples of these types of higher-risk workplaces include: manufacturing; meat, poultry and seafood processing; and high-volume retail and grocery.

•    For all higher-risk workplaces:

•    Stagger break times, or provide temporary break areas and restrooms to minimize interaction.
•    Stagger arrival and departure times.
•    Provide visual cues (e.g. floor markers) for social distancing.
•    Improve ventilation in the workplace.

•    For workplaces with assembly or processing lines, ensure proper spacing or use of barriers.
•    For retail workplaces:

•    Suggest masks for unvaccinated (or where vaccination status is unknown) customers and other visitors.
•    Ensure social distancing or the use of barriers (with pass-through openings at the bottom).
•    Move payment readers further away from the worker.
•    Shift primary stocking activities of unvaccinated/at-risk workers to off-peak or after hours, when possible.

•    For workers on employer-provided shared transportation, employers should notify them of the risk of transmission, limit the numbers of riders, and ensure that unvaccinated/at-risk employees are wearing face coverings.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out alerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.