Shortly after issuing its COVID-19 Emergency Temporary Standard, which is only applicable to employers in the healthcare industry, OSHA also updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in theWorkplace (“Updated OSHA Guidance”).
The Updated OSHA Guidance is applicable only to employers that are not covered by the Emergency Temporary Standard (i.e., those not in the healthcare industry), including contractors, and incorporates the CDC’s Interim Public Health Recommendations for Fully Vaccinated People.
Fully-Vaccinated Workers Can Return to Normal
At the outset, the Updated OSHA Guidance makes clear that employers no longer need to take steps to protect “fully-vaccinated workers,” unless required by other federal, state and local laws. As the Updated OSHA Guidance explains: “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.”
Remember, to be “fully vaccinated,” the individual must have received their final dose at least two weeks prior. The balance of the Updated OSHA Guidance focuses only on protecting unvaccinated workers or “at-risk” workers. “At-risk” workers are defined as those with medical conditions that may affect their ability to have a full immune response to vaccination or who cannot use face coverings.
Recommendations for Protection of Unvaccinated and At-Risk Workers
To be clear, the Updated OSHA Guidance is not a mandate, and creates “no new legal obligations.” Nevertheless, the Updated OSHA Guidance reminds employers of their obligations under OSHA’s General Duty Clause to provide a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.
In that regard, OSHA states that “[e]mployers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces…” The Updated OSHA Guidance recommends that employers have unvaccinated and at-risk workers take the following precautions:
- Get vaccinated because vaccination is the key in a multi-layered approach to protect workers;
- Wear face coverings;
- Socially distance from others;
- Participate in workplace training about safety protocols; and
- Practice good personal hygiene.
For those who work outdoors, the Updated OSHA Guidance provides:
Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.
The Updated OSHA Guidance acknowledges that workers with disabilities may be legally entitled to a reasonable accommodation that protects them from the risk of COVID-19 if they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings. Employers should consider taking steps to protect these workers in the same manner as they would unvaccinated workers, regardless of their vaccination status.
In addition, the Updated OSHA Guidance recommends that employers engage with workers to implement a comprehensive plan to protect unvaccinated and at-risk workers, which utilizes the following:
- Granting paid time off for employees to get vaccinated;
- Ensuring that infected workers, people with COVID-19 symptoms, and unvaccinated people who have been in close contact with someone with COVID-19 are excluded from the workplace;
- Implementing physical distancing for unvaccinated and at-risk workers in all communal work areas, including keeping people six feet apart or constructing barriers;
- Providing unvaccinated and at-risk workers masks, facial coverings, or use of respirator or other PPE, keeping in mind anti-discrimination laws and potential reasonable accommodations;
- Educating and training workers on COVID-19 policies and procedures using accessible formats and in an understandable vernacular;
- Suggesting unvaccinated customers and visitors wear face coverings;
- Maintaining ventilation systems to maximize indoor air circulation;
- Performing routine cleaning and disinfection;
- Recording and reporting COVID-19 infections, in-patient hospitalizations, and deaths in accordance with 29 CFR 1904; and
- Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
The Updated OSHA Guidance also reminds employers of their continuing obligation to follow mandatory OSHA standards related to PPE, respiratory protection, sanitation, protection from bloodborne pathogens, along with their eternal obligation under the General Duty Clause to provide a safe and healthful workplace free from recognized hazards.
Recommendations for Higher-Risk Workplaces
Not to be ignored in the Updated OSHA Guidance are the so-called “higher-risk workplaces,” which include manufacturing, meat, poultry, seafood processing, high-volume retail, and other places where unvaccinated and at-risk workers are in close or prolonged contact with others, or where workers may be exposed to respiratory droplets in the air or on contaminated surfaces, or are in contact with or live with unvaccinated or at-risk individuals. In these circumstances, the Updated OSHA Guidance recommends that employers stagger break times and arrival/departure times to avoid congregations of unvaccinated and at-risk workers and to provide temporary break areas and restrooms to minimize interaction.
As with previous guidance, OSHA is not creating new standards or imposing new legal obligations on employers. Instead, as noted above, the Updated OSHA Guidance aims to provide concrete recommendations for employers to ensure that all workers, particularly those that are unvaccinated or at-risk, are protected from COVID-19.
If employers, especially those in high-risk workplaces, take good faith steps to heed these recommendations, an expansion of the Emergency Temporary Standard to other employment groups may not be necessary.