Again? What Employers Need to Know About OSHA’s Latest Update to Its COVID-19 Workplace Guidance

By Fiona W. Ong - Shawe Rosenthal LLP

August 16, 2021

Trying to stay on top of federal workplace guidance on COVID-19 is confusing and challenging for employers, and the Occupational Safety and Health Administration (OSHA) has just changed the playing field again – although the new guidance is intended to conform with the Center for Disease Control and Prevention’s (CDC) recently-revised recommendations for fully-vaccinated individuals (as discussed in our August 4, 2021 blog post).

Support for Vaccination Mandates. On August 13, 2021, OSHA issued the revised Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, applicable to non-healthcare employers (healthcare employers are subject to OSHA’s Emergency Temporary Standard, as detailed previously). The updated version contains a new and explicit emphasis that “vaccination is the most effective way to protect against severe illness or death from COVID-19.” And OSHA pointedly suggests “that employers consider adopting policies that require employees to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

This is the strongest statement yet from the federal government in support of private employer vaccination mandates, following prior guidance from the Equal Employment Opportunity Commission that such mandates do not violate federal anti-discrimination laws, as well as an opinion from the Department of Justice asserting that the vaccines’ Emergency Use Authorization status does not preclude such mandates.

What Else Is New? Although the last iteration of this guidance asserted that fully-vaccinated workers no longer needed workplace protections, OSHA has modified this position with the following new recommendations for employers:

•    Fully-vaccinated individuals in areas of substantial or high transmission should mask in public indoor settings.

o    We fully discuss the impact of this recommendation on private workplaces in our blog post on the CDC guidance, but in summary here, we believe a reasonable interpretation is that masking should be recommended anywhere where the public (i.e. non-employees) has access, such as retail space but also reception areas and multi-employer building lobbies, for example.
o    Otherwise, in areas of low or moderate transmission or in non-public workspaces, fully-vaccinated employees need not wear masks or observe social distancing protocols, but those who are not fully-vaccinated should continue to do so.

•    Fully-vaccinated individuals who have had close contact with an infected individual should get tested 3-5 days following contact and be required to wear face coverings for 14 days unless they test negative.
•    Those who are not fully-vaccinated and come into close contact should be tested immediately and, if negative, again after 5-7 days. Although not specifically spelled out in the OSHA guidance, CDC guidance provides that that, unlike fully-vaccinated individuals, those who are not fully-vaccinated should remain in quarantine for at least 7 days, as long as the second test is negative. The CDC also provides that, without testing, they should remain in quarantine for 14 days, although local public health officials could shorten that period to 10 days.
•    Employers should expand paid vaccine leave to include time off for workers to accompany family members to receive the vaccine and to care for them if they experience adverse effects. Employers with fewer than 500 employees may receive a tax credit to reimburse them for the cost of such leave, provided at 2/3 the employee’s regular rate up to $200 per day, through September 30, 2021.
•    OSHA clarifies that, in constructing barriers, in addition to employee posture (sitting or standing), employers should also take into account employee height, directional airflow, and fire safety.
•    In addition to providing free face-coverings or surgical masks (and replacements, upon request) to those not fully-vaccinated, employers should provide them to fully-vaccinated workers in public indoor setting in areas of substantial/high transmission or who choose to wear masks, particularly if they are at risk or have household members at risk or not fully vaccinated.
•    Employers should consider requiring (rather than just suggesting) unvaccinated customers/guests/visitors wear face coverings and that, in areas of substantial/high transmission, all such individuals wear face coverings in public indoor settings.

In the section for workers, OSHA adds the recommendation to get tested regularly, particularly in areas of high/substantial transmission.

And with regard to higher-risk workplaces, OSHA expands the previously minimal recommendations for those with assembly or processing lines, as follows:
•     Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
•    Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another.
•    If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
•    Barriers do not replace the need for face coverings or physical distancing.

What Did Not Change 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.

What Did Not Change for Employers. The following recommendations for employers, preferably in consultation with employees and/or their representatives (such as a union), were carried over from the last iteration of the guidance:

•    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). Also take other measures to facilitate vaccinations, such as providing vaccinations in the workplace.
•    Instruct infected workers, unvaccinated workers in close contact with a COVID-19-positive individual, and those with COVID-19 symptoms to stay home.

o    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.
o    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.

o    Masking is not required outdoors, unless mandated by state or local requirements.
o    Employees should be permitted to use masks if they so wish, regardless of vaccination status.
o    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.

o    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.
o    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.

•    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.

o    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.

o    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).
o    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.
o    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.

What Did Not Change for Higher-Risk Workplaces. In addition to the above general recommendations, OSHA continues to offer 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:

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

•    For retail workplaces:

o    Suggest masks for unvaccinated (or where vaccination status is unknown) customers and other visitors.
o    Ensure social distancing or the use of barriers (with pass-through openings at the bottom).
o    Move payment readers further away from the worker.
o    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 E-lerts on any significant developments.