As we previously discussed, OSHA recently released its COVID-19 Emergency Temporary Standard covering the healthcare industry. Now, OSHA has issued updated guidance (the “Guidance”) to help employers outside of the healthcare industry identify COVID-19 risks to their unvaccinated and at-risk employees and recommend steps to prevent exposure and infection. Consistent with CDC guidelines, the Guidance emphasizes that, unless otherwise required by law, “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” The Guidance, therefore, focuses only on protecting unvaccinated and at-risk workers in their workplaces.
Recommendations for Protection of Unvaccinated and At-Risk Workers
The Guidance recommends that employers have unvaccinated and at-risk workers (i.e., people with conditions that may affect their ability to have a full immune response to vaccination) take the following precautions:
- Get vaccinated because vaccination is the key in a multi-layered approach to protect workers;
- Wear face coverings;
- Socially distance from others;
- Participate in workplace training about safety protocols; and
- Practice good personal hygiene.
The Guidance acknowledges that workers with disabilities may be legally entitled to a reasonable accommodation that protects them from the risk of COVID-19 if they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings. Employers should consider taking steps to protect these workers in the same manner as they would unvaccinated workers, regardless of their vaccination status.
In addition, the Guidance recommends that employers engage with workers to implement a comprehensive plan to protect unvaccinated and at-risk workers, which utilizes the following:
- Granting paid time off for employees to get vaccinated;
- Ensuring that infected workers, people with COVID-19 symptoms, and unvaccinated people who have been in close contact with someone with COVID-19 are excluded from the workplace;
- Implementing physical distancing for unvaccinated and at-risk workers in all communal work areas, including keeping people six feet apart or constructing barriers;
- Providing unvaccinated and at-risk workers masks, facial coverings, or use of respirator or other PPE, keeping in mind anti-discrimination laws and potential reasonable accommodations;
- Educating and training workers on COVID-19 policies and procedures using accessible formats and in an understandable vernacular;
- Suggesting unvaccinated customers and visitors wear face coverings;
- Maintaining ventilation systems to maximize indoor air circulation;
- Performing routine cleaning and disinfection;
- Recording and reporting COVID-19 infections, in-patient hospitalizations, and deaths in accordance with 29 CFR 1904; and
- Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
In addition, the Guidance reminds employers of their continuing obligation to follow mandatory OSHA standards related to PPE, respiratory protection, sanitation, protection from bloodborne pathogens, along with their eternal obligation under the General Duty Clause to provide a safe and healthful workplace free from recognized hazards.
Recommendations for Higher Risk Workplaces
Not to be ignored in the Guidance are the so-called higher risk workplaces, which include manufacturing, meat, poultry, seafood processing, high-volume retail, and other places where unvaccinated and at-risk workers are in close or prolonged contact with others, or where workers may be exposed to respiratory droplets in the air or on contaminated surfaces, or are in contact with or live with unvaccinated or at-risk individuals. In these circumstances, the Guidance recommends that employers stagger break times and arrival/departure times to avoid congregations of unvaccinated and at-risk workers and to provide temporary break areas and restrooms to minimize interaction.
For workplaces with assembly or processing lines, the Guidance recommends proper spacing or use of barriers. Retail workplaces are encouraged to provide masks for unvaccinated customers, ensure social distancing among clients, and to shift stocking activities to off-peak or after hours. All work groups, not just high-risk, should maintain cleaning and sanitation protocols at all times.
As with previous guidance, OSHA is not creating new standards or imposing new legal obligations on employers. Instead, the Guidance aims to provide concrete recommendations for employers to ensure that all workers, particularly those that are unvaccinated or at-risk, are protected from COVID-19. If employers, especially those in high risk workplaces, take good faith steps to heed these recommendations, an expansion of the Emergency Temporary Standard to other employment groups may not be necessary. We will continue to monitor and report further developments.