While there is no specific COVID-19 standard that applies to employers and employees not covered by the recent emergency temporary standard (ETS) applicable specifically to employers with employees working in a healthcare setting, the Occupational Safety and Health Administration (OSHA) continues to issue citations under the so-called General Duty Clause, Section 5(a) of the Occupational Safety and Health Act, as well as specific standards that OSHA believes are applicable to a given situation. Moreover, OSHA issued guidance in late January 2021 titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” that was intended to help employers implement COVID-19 prevention programs and identify risks that could lead to employees being exposed to the virus. On June 10, 2021, OSHA updated that guidance to further assist employers and workers not covered by its ETS and, like other federal agencies, to encourage COVID-19 vaccination. Set forth below are highlights of that updated guidance. Healthcare employers are required to comply with OSHA’s COVID-19 ETS absent an applicable exemption. An overview of an employer’s obligations under the ETS is covered in a separate alert found here.
As an initial matter, OSHA’s guidance is not a standard or regulation and does not create new legal obligations. Nevertheless, employers should familiarize themselves with the guidance and implement it where feasible to minimize the risk of a workplace-related COVID-19 safety issue and to reduce the likelihood of a potential OSHA citation.
By way of a brief refresher, OSHA’s January 2021 guidance encouraged employers to identify high-risk workers and to implement a COVID-19 prevention program. Key elements of such a prevention program would include conducting a hazard assessment; implementing measures that mitigate the spread of COVID-19 in the workplace (such as telework and flexible schedules, enhanced cleaning procedures, proper ventilation, personal protective equipment or face coverings, and physical distancing, separating and sending home infected or potentially infected workers); and protecting workers from retaliation for expressing COVID-19 concerns.
With its updated June 2021 guidance, OSHA has restated key elements of the January guidance with a focus on protecting unvaccinated and otherwise at-risk workers, encouraging COVID-19 vaccination, and providing hyperlinks to other up-to-date guidance, such as from the Centers for Disease Control and Prevention (CDC). The following overview, broken down into three subsections for ease of reference, summarizes OSHA’s latest recommendations on steps that employers and workers can take to mitigate the spread of COVID-19 in the workplace.
Guidance for Employers
[Updated August 2021] In reliance on the then-current CDC guidelines, OSHA’s June 10, 2021 guidance stated that unless otherwise required by OSHA’s ETS or other laws, rules, or regulations, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.” However, on July 27, 2021, the CDC subsequently changed its mask-wearing guidelines for vaccinated individuals due to a spike in COVID-19 infections caused by the Delta variant. In turn, this change in CDC guidelines prompted OSHA to update its guidance on August 13, 2021, now instructing that “even people who are fully vaccinated [should] wear a mask in public indoor settings in areas of substantial or high transmission, or if they have had a known exposure to someone with COVID-19 and have not had a subsequent negative test 3-5 days after the last date of that exposure.” The CDC’s website provides updated information on a county-by-county basis regarding whether the current level of the transmission rate of COVID-19 in an area is “low,” “moderate, “substantial” or “high.”
In workplaces where not all employees are vaccinated, however, employers should continue to take steps to protect unvaccinated or otherwise at-risk workers in their workplaces or in well-defined portions of workplaces. These steps include:
- Granting workers paid time off to get vaccinated and to recover from any potential side effects from the vaccine. This furthers the objective of OSHA and other federal agencies to ensure that all workers have access to vaccinations.
- On August 13, 2021, OSHA updated its guidance to specifically suggest that “employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”
- Instructing any infected workers, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission.
- Implementing physical distancing for unvaccinated and otherwise at-risk workers (e.g., utilize telework arrangements and flexible work schedules, and separate individual workspaces with transparent shields or other solid barriers).
- Providing unvaccinated and at-risk workers with face coverings, surgical masks, and respirators or other personal protective equipment (PPE) (if otherwise required under relevant OSHA standards or other laws or deemed necessary by the employer) at no cost. For example, an employee may have a legal right to PPE as a reasonable accommodation under the Americans with Disabilities Act, and employers are encouraged to proactively inform that worker about how to make such a request.
- Educating and training workers on the employer’s COVID-19 policies and procedures in an accessible format and in a language they understand. Workers should understand their rights to a safe and healthful work environment, should know whom to contact with questions or concerns about workplace safety and health, and should be informed of their right to raise workplace safety and health concerns without fear of retaliation.
- Suggesting that third parties (such as customers, visitors, or guests) wear face coverings, especially in public-facing workplaces where unvaccinated or otherwise at-risk workers interact with those third parties (e.g., retail establishments).
- Maintaining ventilation systems and performing routine cleaning and disinfection.
- Implementing procedures for workers to voice concerns about COVID-19-related hazards (such as an anonymous hotline for workers).
- Following other applicable mandatory OSHA standards, such as recording and reporting COVID-19 infections and deaths pursuant to OSHA’s existing regulations (e.g., 29 C.F.R. § 1904) and ensuring workers are free from retaliation for raising workplace safety and health concerns or engaging in other protected activity. *Note: The guidance provides that in furtherance of its objective to encourage vaccination among workers, OSHA will not enforce recording requirements to require employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA plans to reevaluate its position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.
The OSHA guidance also encourages “higher-risk” workplaces to take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers. Higher-risk workplaces are characterized as those workplaces that necessitate (1) close contact (e.g., unvaccinated workers working closely together on an assembly or processing line to maximize productivity); (2) prolonged periods of interaction (e.g., where unvaccinated workers have prolonged closeness to coworkers for eight to 12 hours); (3) use of shared spaces or equipment (e.g., manufacturing settings); (4) use of employer-provided transportation such as ride-share vans or shuttle vehicles; (5) frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and (6) use of communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals. Examples of high-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing.
For such higher-risk workplaces, OSHA recommends certain engineering and administrative controls in addition to the general precautions outlined above, such as staggering break, arrival, or departure times to prevent congregation of employees in certain areas; tailoring the workplace to improve ventilation; ensuring proper spacing among workers (particularly those who work in processing or assembly lines) and providing reminders about social distancing in the workplace (e.g., signs or floor markings); suggesting mask-wearing for unvaccinated customers or other third parties; and setting up physical barriers between workstations or between workers and third parties to ensure adequate distancing and protection for unvaccinated or otherwise high-risk workers (particularly in retail workplaces where workers regularly interact with customers who may not be vaccinated or whose vaccination status is otherwise unknown).
Guidance for Unvaccinated Workers
The updated OSHA guidance focuses in particular on workers who are unvaccinated or otherwise at risk in order to assist both employers and workers in taking appropriate steps to prevent COVID-19 exposure and infection.
Like the CDC, OSHA encourages unvaccinated workers to get vaccinated as the best defense against contracting COVID-19. In furtherance of this, the guidance encourages employers to take steps to make it easier for workers to get vaccinated, such as providing paid time off to do so. To the extent workers are not vaccinated or are otherwise at risk, the guidance makes the following recommendations to workers:
- As indicated above, OSHA updated its guidance on August 13, 2021, to suggest that employers give consideration to adopting policies that require unvaccinated employees to get fully vaccinated or undergo regular COVID-19 tests.
- Identify opportunities to get vaccinated, and inquire about opportunities for paid leave, if necessary, to get vaccinated and to recover from any side effects.
- Properly wear a face covering when appropriate and in accordance with the CDC’s guidelines on face coverings.
- Maintain a safe distance from others (at least six feet), especially when indoors and in poorly ventilated areas, and inquire about possible telework and flexible schedule options.
- Participate in any training offered by your employer or building manager to learn how rooms are ventilated effectively, and notify the building manager if vents appear clogged, dirty, or blocked by furniture or equipment.
- Practice good personal hygiene, frequently washing one’s hands, monitoring one’s health on a daily basis, and being alert for COVID-19 symptoms.
It is important to note that even fully vaccinated workers should be alert for COVID-19 symptoms, and if they do have symptoms, they should get tested and stay home and away from other workers.
Given this updated guidance from OSHA, employers should review their current COVID-19 plans and hazard assessments and update them as necessary to reflect the current recommendations and best practices. Employers should also stay current on applicable OSHA standards, guidance from the CDC, and state and local health guidelines. It is important to note that employers may be subject to different requirements under a state occupational safety and health plan or more stringent requirements under other state and local laws, and employers should confirm what laws apply to them when developing and updating their safety program. If you require assistance in analyzing your company’s workplace safety responsibilities, please contact Tiffany Hubbard at firstname.lastname@example.org or speak to your McCarter relationship partner.
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