OSHA Issues Updated Guidance on COVID-19 Protocols in the Workplace
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On August 13, 2021, the Occupational Safety and Health Administration (OSHA) revised its guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” We reported on the original guidance on February 2, 2021 [see here]. This revised guidance applies to all employers who are not covered by OSHA’s COVID-19 Emergency Temporary Standards for Healthcare, which we reported on June 16, 2021 [see here].
This new guidance explains that while vaccines are useful in preventing illness, even vaccinated individuals need to take certain precautions while at work to prevent the spread of the virus, and that employers should likewise implement various safeguards to slow the spread in the workplace.
More specifically, this new guidance incorporates recent recommendations from the Centers of Disease Control related to vaccinated individuals. While much has stayed the same, there are some changes that employers should know about. The major points from OSHA’s guidance are as follows:
This new guidance explains that while vaccines are useful in preventing illness, even vaccinated individuals need to take certain precautions while at work to prevent the spread of the virus, and that employers should likewise implement various safeguards to slow the spread in the workplace.
More specifically, this new guidance incorporates recent recommendations from the Centers of Disease Control related to vaccinated individuals. While much has stayed the same, there are some changes that employers should know about. The major points from OSHA’s guidance are as follows:
- Employers should make it easy to get vaccinated. OHSA recommends that employers grant paid time off to allow employees to get vaccinated, or provide vaccination opportunities in the workplace. OSHA also suggests that employers adopt policies that require workers to get vaccinated or undergo regular COVID-19 testing, in addition to mask wearing and social distancing.
- Employers should instruct certain employees to stay home. OSHA recommends that employers tell the following groups of employees to stay home until they have tested negative or quarantined for 14 days: infected employees; unvaccinated workers who have had close contact with someone who tested positive for the virus; and, all workers with COVID-19 symptoms. With respect to vaccinated workers who are in close contact with someone infected, OSHA recommends they get tested 3-5 days after exposure and wear a mask in indoor settings.
- Employers should implement physical distancing in all communal work areas for unvaccinated and at-risk workers. OSHA recommends at least 6-feet separation between unvaccinated workers, if possible. If that is not possible, OSHA recommends transparent barriers between unvaccinated employees, or implement flexible work hours that limit the number of unvaccinated workers in any one location at the same time.
- Employers should provide face coverings or masks unless a respirator or other PPE is required. OSHA recommends, in accordance with the CDC, that all employees (even vaccinated employees) wear a mask indoors in areas of substantial or high transmission (at this time, that includes virtually all counties in Texas and New Mexico, including El Paso County, Travis County and Dona Ana County). Additionally, OSHA recommends masks for vaccinated employees if they are at risk or have someone in their household who is at risk or not fully vaccinated. And employers should provide these free of cost to employees. Workers who are outdoors may opt not to wear a face covering unless they are at risk (e.g., immunocompromised). PPE may also be required under OSHA regulations for particular fields where necessary to protect unvaccinated and otherwise at-risk workers.
- Employers should educate and train workers on COVID-19 policies using accessible formats and in languages they understand. In other words, employers should have written policies addressing COVID-19 that are communicated to their employees. And that communication should be in languages appropriate for the workforce and in accessible formats (for hearing-impaired employees for instance). Employees should also have the ability to contact a specific person if they have questions or concerns about those policies or COVID-19-related issues in the workplace.
- Employers should suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. OSHA notes that this could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by the applicable jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings, according to OSHA.
- Employers should maintain ventilation systems. OSHA states that improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular. Therefore, employers should follow the CDC’s “Ventilation in Buildings” guidance and “OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.”
- Employers should perform routine cleaning and disinfection. Nothing has changed on this recommendation. Employers should perform enhanced cleaning and disinfection of immediate work areas and equipment if workers with suspected or confirmed COVID-19 have been in the facility. Among other things, this includes using appropriate EPA-registered disinfectants, and vacuuming with a high-efficiency particulate air filter, if available. If it is more than 7 days since the infected person visited or used the facility, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should be continued.
- Employers must record and report COVID-19 infections and deaths. Nothing has changed here. Employers must record and report COVID-19 infections and deaths, in accordance with OSHA recording requirements. Employers should report outbreaks to health departments as required and support their contact tracing efforts.
- Employers must implement protections from retaliation and should set up an anonymous process to raise concerns about COVID-19-related hazards. In addition to notifying workers of their rights to a safe and healthful work environment, employers should ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities.
As OSHA notes, most of this guidance consists of suggestions—not requirements under the OSH Act. But some (like reporting requirements and providing PPE for certain industries) are required. As such, employers should review their policies and procedures, implement and follow the required guidance, and consider implementing the suggested changes. If you need assistance making that determination or have any questions, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
