After months of anticipation by employers and the business community, the Occupational Safety and Health Administration (“OSHA”) introduced its updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Many thought that OSHA would issue mandatory workplace safety rules for all industries, but, except for certain healthcare settings (which do have new requirements), OSHA chose simply to update its previously issued COVID-19 guidance for workplaces.
Although OSHA’s new workplace guidance does not establish and new legal requirements, it is best practice for employers and businesses to implement the recommendations to the extent possible and appropriate. Complying with the guidance, as well as OSHA’s prior mandatory standards and recommendations, and guidelines of other agencies such as the CDC and applicable state and local agencies, helps protect workers and reduces an employer’s potential exposure to liability.
The new guidance focuses on identifying and mitigating exposure risks to workers who are unvaccinated or otherwise at-risk, as well as providing additional recommendations for high-risk workplaces. In line with CDC guidelines, unless otherwise required by federal, state, local or other laws and regulations (including the new OSHA Emergency Temporary Standards for healthcare and mask requirements for public transportation), most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.
For unvaccinated or at-risk workers, OSHA recommends the following:
- Encourage vaccinations and grant paid time off for workers to get vaccinated (including recovery from potential side effects).
- Instruct infected workers and unvaccinated workers who have had close contract with someone who tested positive for COVID-19, and all workers with symptoms of COVID-19, to stay home from work.
- Implement physical distancing for unvaccinated and otherwise at-risk workers in communal areas.
- Limit the number of unvaccinated and at-risk workers in one place at a given time (e.g., flexible schedules, staggered schedules, remote work or meetings, flexible meeting and travel options).
- Use physical barriers where unvaccinated or at-risk workers cannot maintain sufficient physical distance.
- Instruct employees to use face coverings or personal protective equipment (“PPE”) when appropriate (accounting for applicable protections under the ADA and Title VII), and provide face coverings and PPE, if needed, at no cost.
- Ensure absence policies are not punitive and that employees are not encouraged or required to come to work sick.
- Educate and train workers on COVID-19 policies and basic facts about transmission and safety.
- Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments.
- Maintain ventilation systems.
- Perform routine cleaning and disinfection.
OSHA further reminded employers they must also follow all applicable mandatory OSHA standards, including: recording work-related COVID-19 cases, and reporting COVID-19 fatalities and hospitalizations to OSHA; ensuring prohibitions against retaliation for raising workplace safety and health concerns; and following OSHA’s rules aimed at protecting workers from infection, including PPE requirements.
OSHA also outlined additional recommendations for “higher-risk workplaces,” which include:
- manufacturing, meat, poultry, and seafood processing;
- high-volume retail and grocery; and
- other places where unvaccinated or other at-risk workers
- are in close or prolonged contact,
- may be exposed to respiratory droplets in the air or on contaminated surfaces,
- share employer-provided transportation,
- are in frequent contact with other unvaccinated or at-risk workers in community settings where there is higher community transmission, or
- live with other unvaccinated or at-risk individuals in communal housing or on vessels.
For “higher-risk workplaces,” in addition to all of the above steps, employers should also:
- Stagger break times and arrival/departure times to avoid groups of unvaccinated or at-risk workers congregating.
- Continue to maintain social distancing for unvaccinated or at-risk workers and provide reminders, including announcements, signs, floor markers, etc.
- Suggest masks for unvaccinated or unknown status customers and visitors.
- Use physical barriers between employees, and between employees and customers, where applicable.
- Improve ventilation to protect workers.
- In retail workplaces, if possible, move the electronic payment terminal/credit card machine farther away from the unvaccinated or otherwise at-risk worker to increase distance between the worker and customers; and shift primary stocking activities of unvaccinated or at-risk workers to off-peak or after hours to reduce contact between them and customers.
Most of the updated OSHA guidance reiterates many of the health and safety measures that have become commonplace during the pandemic, such as masks, social distancing, hygiene, and staying home when sick. But as many states and localities relax restrictions, the OSHA guidance provides a useful reminder of the importance of workplaces continuing to employ these fundamental safety measures in appropriate settings, particularly regarding unvaccinated and at-risk workers, in order to reduce the risk of COVID-19 spread and protect workers.
Although the new OSHA guidance is not mandatory, implementing the recommendations for unvaccinated and at-risk workers can reduce employers’ risk of claims from workers and make them feel safer when returning to work.
If you have any questions or need help implementing the new OSHA recommendations, please let us know, we are happy to help.