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Legal Alert

Updated COVID-19 Guidance from OSHA and the CDC: What It Means for Your Business

August 23, 2021

Earlier this month, the Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance, eliminating inconsistencies between its recommendations and the late July update from the Centers for Disease Control and Prevention (CDC)—and simplifying matters for employers. 

For your convenience, we've provided a summary of OSHA's new guidance below:

Masks, Vaccination Status and Policies, and COVID-19 Exposure

Masks: OSHA now recommends that fully vaccinated individuals wear masks in public indoor settings in areas of substantial or high transmission. OSHA further recommends that vaccinated individuals wear masks, regardless of transmission levels, if a member of their household is at increased risk for the disease or is not fully vaccinated.

Vaccinations: OSHA now recommends 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."

COVID-19 Exposure: For vaccinated employees with known exposure to suspected or confirmed COVID-19, even in areas without substantial or high transmission, OSHA recommends testing three to five days following the exposure and wearing a mask in public indoor settings for 14 days after exposure or until receiving a negative test result.   

 
Specific Steps Employers Can Take

OSHA further outlines the following steps employers should take:

  • Facilitate employee vaccination, including providing paid time off for employees to get vaccinated and recover from side effects.
  • Instruct employees who are infected, unvaccinated employees who have had close contact with someone who tested positive for COVID-19, and all employees with COVID-19 symptoms to stay home from work.
  • Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.

In addition to the above, the updated guidance emphasized steps from prior guidance that employers should continue to take:

  • Maintain physical distancing in all communal work areas for unvaccinated and otherwise at-risk employees (those with a medical condition that may affect their ability to have a full immune response to vaccination or conditions that put them at greater risk of severe illness from COVID-19).
  • Provide employees with face coverings or surgical masks, as appropriate, unless their work tasks require a respirator or other PPE.
  • Educate and train employees on your COVID-19 policies and procedures using accessible formats, in language(s) the employees understand.
  • Maintain ventilation systems.
  • Perform routine cleaning and disinfection.
  • Record and report COVID-19 infections and deaths.
  • Implement protections from retaliation and set up an anonymous process for employees to voice concerns about COVID-19-related hazards.
  • Follow other applicable OSHA standards.  

Higher-Risk Workplaces
 
The guidance also includes specific recommendations for higher-risk workplaces with unvaccinated and or otherwise at-risk employees. Higher-risk workplaces are those with close contact among employees, prolonged closeness (six to 12 hours per shift) among employees, potential risk to unvaccinated or otherwise at-risk employees from co-workers' coughing or sneezing in a confined or poorly ventilated space, or other characteristics, including the use of employer-provided ride-share vans and communal housing aboard vessels.
 
Steps that employers in higher-risk workplaces can take include: 

  • Staggering break times or providing temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk employees congregating during breaks.
  • Staggering arrival and departure times to avoid congregations of employees in parking areas, locker rooms, and near time clocks.
  • Providing visual cues, such as floor markings or signs, as a reminder to maintain physical distancing.
  • Requiring unvaccinated or otherwise at-risk employees, as well as fully vaccinated employees in areas of substantial or high transmission, to wear masks whenever possible, and encouraging and potentially requiring customers and other visitors to do the same.
  • Implementing workplace specific strategies to improve ventilation.

The new guidance provides additional recommendations for specific industries, including retail; meat, poultry, and seafood processing; and manufacturing and assembly line operations. 

To review OSHA's new guidance in full, go to: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.
 
Employer Takeaway
 
This most recent OSHA guidance is advisory in nature. It is not a standard or regulation and creates no new legal obligations. However, OSHA's general duty clause does require employers to provide a safe and healthy workplace free from recognizable hazards, and the recent guidance provides practical advice for employers on how to do so with respect to COVID-19. As a result, employers, especially those with higher-risk workplaces or those who may have recently experienced employee infections, should review the new guidance and, to the extent feasible for their workplaces, update practices and policies to conform to the guidance. This will be particularly important for employers who are contemplating reopening their workplaces in coming months.    
 
We Can Help
Revising and implementing masking, vaccination, and other related safety policies or practices can be complicated, and the right approach will often depend on the individual workplace and employer. Maslon's Labor & Employment Group can help clients navigate constantly evolving health and safety guidance and tailor policies and communication strategies that meet each individual employer's needs.

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