The updated guidance will be a likely starting place for future OSHA COVID-19 related workplace inspections and investigations, although the extent to which OSHA will enforce the updated guidance under the GDC is unclear.
On June 10, 2021, OSHA updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for employers in nonhealthcare settings. As widely anticipated, the updated OSHA guidance follows the CDC’s current approach:
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.
Recommended protections, including masking and social distancing, remain in place for unvaccinated and other at-risk workers―even in states and localities that have lifted these requirements. OSHA simultaneously issued an emergency temporary standard applicable to certain healthcare employers (ETS) that will be addressed in a coming Alert.
The guidance states that it is “advisory.” However, failure to follow the guidance may expose employers to, among other risks, OSHA citations and substantial penalties for violating the OSHA statutory general duty clause (GDC). As the guidance explains, the GDC “requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” The updated guidance will be a likely starting place for future OSHA COVID-19 related workplace inspections and investigations, although the extent to which OSHA will enforce the updated guidance under the GDC is unclear.
The guidance provides employers with a road map of key approaches for addressing COVID-19 workplace risks in a manner that is consistent with current CDC guidance. OSHA describes 11 specific multilayered interventions to protect unvaccinated and other at-risk workers that are applicable to all employers. For other higher-risk workplaces―which according to OSHA, include manufacturing, meat, poultry and seafood food processing, and high volume retail and grocery―OSHA provides for additional precautions.
Below are some of the key areas addressed in the guidance.
The guidance emphasizes that workplace protections should continue to be provided for unvaccinated and other at-risk workers (discussed below). However, employers no longer need to take steps to protect fully vaccinated workers from COVID-19, except under the ETS and masking for public transportation. This means that in workplaces with both vaccinated and unvaccinated workers, employers will need to determine who is vaccinated, unless those who are vaccinated will be subject to the same COVID-related requirements as those who are unvaccinated.
OSHA advises employees that vaccination “is the key” to protection and that they should take advantage of opportunities employers provide to take time off for getting a vaccination. Significantly, providing paid time off for employees to get vaccinated is at the top of OSHA’s list of the interventions employers should adopt.
The guidance points out that due to various medical conditions, related treatments or medication, certain workers, may be at risk of contracting COVID-19 because the vaccine does not protect them or they are unable to get vaccinated. Workers for whom vaccines would be ineffective or are disabled and therefore cannot get vaccinated may be entitled to additional protections, including as accommodations under the Americans with Disabilities Act. Other employees may seek a religious accommodation under Title VII. The questions of whether and how to reach out to at-risk employees is beyond the scope of this Alert, but require careful consideration, including considering the specific facts related to the individual and the position at hand, as well as reviewing guidance from other agencies, such as the EEOC and CDC.
According to the guidance, screening should continue for both vaccinated and unvaccinated workers. It specifically provides that employers should:
Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work…
The manner in which employers should do so is not specified and there are various options to evaluate. Employers should further consider additional screening consistent with CDC recommendations. OSHA also provides for employers to ensure that policies do not encourage either sick workers or unvaccinated workers exposed to COVID-19 to come to work.
The guidance provides that unvaccinated and otherwise at-risk workers should wear face coverings or surgical masks to help protect others and themselves. This differs from the initial version of the guidance, which provided for both vaccinated and unvaccinated employees to wear face coverings or surgical masks. When outdoors, unvaccinated employees may elect not to wear face coverings, unless at-risk due to a medical condition (such as a compromised immune system). The guidance now largely coordinates with the more recent CDC Interim Public Health Recommendations for Fully Vaccinated People.
As indicated in the initial version of the guidance, employers should provide face coverings to employees at no cost. These are to be made of at least two layers of a tightly woven breathable fabric such as cotton, should not have exhalation valves or vents and should fit snugly over the nose, mouth and chin. Employers with policies and practices that allow face coverings with exhalation valves or vents should update them to preclude these kinds of face coverings that do not conform to the guidance.
Workers are to be provided with and wear respirators or other personal protective equipment (PPE) if required under any applicable OSHA standard, such as workers whose duties involve exposure to certain hazardous chemicals.
There will be some fully vaccinated employees who are more comfortable continuing to wear face coverings. The guidance provides that employers should support employees who wish to wear face coverings or PPE that is not required, whether out of concern for their personal safety or the safety of a family member who is at higher risk. In addition, disabled employees may have a right to certain PPE as an accommodation under the ADA, even if not required under any OSHA standards. Any time PPE is provided, employers are well-advised to comply with applicable OSHA requirements, such as respirator fit testing.
The guidance provides that in workplaces where unvaccinated or other at-risk workers are likely to interface with customers or visitors, employers should suggest that these nonemployees wear face coverings if they are unvaccinated―even if no longer required by state or local law. The manner in which employers handle masking, screening, vaccination and related issues with respect to employees potentially may serve as the basis for claims by nonemployees who allegedly have become infected by an employee and vice versa. Accordingly, employers should carefully consider how to address COVID-19 work-related safety issues regarding contact with contractors, business partners, customers and members of the general public.
Other Safety Practices and Requirements
The guidance continues to provide for physical distancing for unvaccinated and at-risk workers, including by limiting the number of such persons in the same area at any one time. Where this may not be feasible, solid barriers are to be used, with openings placed and sized to prevent the transmission of respiratory droplets. Improving ventilation, routine cleaning and disinfection, employee training and nonretaliation obligations are also addressed. The guidance also reminds employers that they are required to comply with existing mandatory standards that may apply when addressing COVID-19 related risks, including requirements relating to working with hazardous chemicals during cleaning and disinfection, recording and reporting work-related cases of COVID-19, and worker protections against retaliation.
Higher Risk Workplaces
For higher risk workplaces―which according to OSHA, include (but are not limited to) manufacturing, meat, poultry and seafood processing, and high volume retail and grocery―OSHA provides for additional precautions. According to OSHA, factors including the following present higher-risk:
- Close contact among unvaccinated or other at-risk workers, such as on assembly lines, in locker rooms or when clocking in or out.
- Prolonged contact of unvaccinated or other at-risk workers with potentially infectious persons, such as during shift work.
- Potential contact with airborne respiratory droplets or contaminated surfaces, objects or shared spaces.
- Other factors including employer provided ride-sharing, contact with potentially infected individuals in community settings with elevated transmission and communal housing or living quarters.
Specific recommendations are provided for assembly lines, retail workplaces and employer-provided transportation. In addition, OSHA promotes the following recommendations applicable to all higher risk workplaces (or areas) that include unvaccinated or at-risk workers (in addition to the general precautions outlined above):
- Vary break times among such employees to facilitate social distancing, or do so by providing additional restrooms and break areas;
- Stagger arrival and departure times;
- Provide visual cues for social distancing, such as signs and floor markers; and
- Improve ventilation.
What This Means for Employers
The guidance may encourage employers to require that all workers (or workers in certain areas) are fully vaccinated to minimize risk of work-related transmission and the need for related precautions. The EEO laws do not generally prohibit employers from requiring vaccinations, subject to the obligation to accommodate the refusal or inability to become vaccinated based on disability, pregnancy or sincerely held religious beliefs, practices or observance.
It is axiomatic that employers with workplaces including both vaccinated and unvaccinated employees will need to consider whether to require all employees to comply with the same COVID-19 safety practices or differentiate between vaccinated and unvaccinated employees. Employers taking the latter approach should develop procedures for determining which employees are fully vaccinated and implementing safety practices that comply with EEOC’s recently issued guidance regarding vaccination inquiries and the confidentiality of vaccination information.
Of course, whichever approach employers choose to implement, there are significant employee relations, operational and legal issues to address. For example, how will we determine who must wear a mask? How will we handle unvaccinated employees who say they cannot mask for health-related or religious reasons? What about employees who are uncomfortable with or refuse to work with unvaccinated persons? How is confidential medical information to be protected in determining who is vaccinated and who is not? Many of these issues are highlighted in our prior Alert. Employers should consider the manner in which they will address these issues before they arise. Particularly for employers operating in multiple locations, it will be important to continue to consider any applicable state and/or local requirements.
Finally, this Alert addresses only some of the more salient issues raised by the updated guidance. Employers are well-advised to review the revised guidance carefully as they evaluate the manner in which they will protect their employees while resuming or continuing operations, as we continue to emerge from the pandemic.