OSHA Updates Guidance to Mitigate COVID-19 in the Workplace

The Occupational Safety and Health Administration (OSHA) recently updated its nonbinding COVID-19 guidance applicable to all industries not otherwise covered by its Emergency Temporary Standard (ETS). The primary purpose of the August 13, 2021 update is to align OSHA guidance with the Centers for Disease Control and Prevention’s (CDC’s) July 27, 2021 updated mask and testing recommendations for fully vaccinated individuals. The CDC guidance, which is now explicitly endorsed by OSHA, reversed course by recommending that fully vaccinated individuals wear masks in public indoor settings in areas of substantial or high community transmission, as classified by the CDC COVID Data Tracker.

Noteworthy New Recommendations

OSHA’s updated guidance continues to focus on helping “employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk.” At the same time, OSHA specifically adopts the CDC’s July 27, 2021 recommendations for fully vaccinated people, which contains new updates in light of infections by the delta variant. OSHA explicitly endorses the following CDC recommendations for fully vaccinated people:

• Wearing a mask in public indoor settings in areas of substantial or high transmission (regardless of vaccination status)
• Choosing to wear a mask regardless of the level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated
• Getting tested three to five days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result, unless symptomatic, in which case isolation protocol for suspected positive cases should be followed

In its guidance, OSHA reiterates its support for the COVID-19 vaccine, explaining that “vaccination is the most effective way to protect against severe illness or death from COVID-19.” To promote vaccination, OSHA strongly encourages employers to take the following actions:

• Grant paid time off for workers for the time it takes for them to get vaccinated and recover from any side effects
• Consider working with public health authorities to provide vaccinations for unvaccinated workers in the workplace
• Consider adopting policies that require workers to get vaccinated or undergo regular COVID-19 testing—in addition to mask wearing and physical distancing—if they remain unvaccinated

OSHA’s updated guidance acknowledges and responds to the increased spread of the delta variant of COVID-19. While its prior guidance focused on unvaccinated workers, OSHA’s latest guidance encourages employers to utilize workplace safety mitigation and controls for all workers, regardless of vaccination status, in areas of substantial or high transmission. OSHA also focuses on at-risk workers who are more likely to be in prolonged, close contact with others (e.g., in manufacturing, meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings). OSHA endorses a multilayered approach, including the following steps:

• Facilitate employees getting vaccinated
• Instruct any infected, exposed, or symptomatic workers to stay home
• Implement physical distancing between employees, especially for unvaccinated and at-risk employees
• Provide employees with face coverings
• Educate and train employees on COVID-19 policies and procedures
• Suggest or require that customers, third parties, and visitors wear face coverings at the worksite
• Maintain ventilation systems
• Perform cleaning and disinfection
• Focus on OSHA recordkeeping and reporting when required
• Continue to emphasize protections against retaliation if employees report any concerns regarding COVID-19

Once again, non-healthcare employers (i.e., those not covered by the ETS) that follow the latest OSHA and CDC guidance, including the guidance for employers in areas of substantial or high transmission, likely satisfy OSHA’s General Duty Clause when it comes to COVID-19. Of course, employers must also monitor and comply with stricter state and local laws, including in OSHA state plan states.

Return to Work Resources

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: 

Los Angeles
Jason S. Mills

Washington, DC
Sharon P. Masling
Jonathan L. Snare
Kaiser H. Chowdhry
Alana F. Genderson