By Conn Maciel Carey’s COVID-19 Task Force

On June 10th, Fed OSHA revealed its much anticipated (or dreaded) COVID-19 Prevention Emergency Temporary Standard, but rather than a rule applicable to all industries, OSHA issued a regulation narrowly tailored only to certain healthcare settings.

So what does that mean for all other employers?  For everyone else, federal OSHA simultaneously published significant updates (mostly improvements) to its principal workplace COVID-19 guidance – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  This was an update to the original version that issued on January 29, 2021 in response to Pres. Biden’s Day 1 OSHA Executive Order, and the first time it has been updated since the COVID-19 vaccines became widely available.

OSHA announced that the updated guidance is intended to help employers protect non-vaccinated workers in non-healthcare settings (i.e., industries not covered by the new ETS), with a special emphasis on other industries noted for prolonged close-contacts among workers, such as meat processing, manufacturing, seafood, and grocery and high-volume retail workplaces.  The guidance also states that it applies to otherwise at-risk workers; i.e., those with conditions that may affect the workers’ ability to have a full immune response to vaccination.

OSHA categorizes the updates to the guidance into three buckets:

1. focus protections on unvaccinated and otherwise at-risk workers;
2. encourage COVID-19 vaccination; and
3. link to guidance with the most up-to-date content.

At its core, though, OSHA’s new guidance was updated to align with CDC’s May 13, 2021 guidance regarding relaxing requirements for vaccinated individuals.  OSHA’s updated guidance states:

“CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.”

As such, OSHA’s guidance advises that, unless otherwise required by another jurisdiction’s laws, rules, or 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.  To the extent workers are not vaccinated or are otherwise at risk, however, OSHA states that employers must continue to implement controls to help protect them, include:

• separating from the workplace all infected people, all people experiencing COVID symptoms, and any unvaccinated people who have had a close contact with someone with COVID-19
• implementing physical distancing
• maintaining ventilation systems, and
• enforcing the proper use of face coverings or PPE when appropriate.

More specifically, OSHA recommends employers engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19 by taking some combination of these actions:

• Providing paid time off for employees to get vaccinated.
• Instructing unvaccinated workers who experience a close contact exposure, and any worker (vaccinated or unvaccinated) who experience COVID-19 symptoms or who are confirmed to be infected to stay home from work.
• Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.  At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, install transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) to separate these workers from other people.
• Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE in accordance with relevant mandatory OSHA standards.
• Training workers on your COVID-19 policies and procedures in formats and languages they understand.
• “Suggesting” that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or at-risk workers there who are likely to interact with them.
• Maintaining existing ventilation systems.
• Performing routine cleaning and disinfection.
• Recording and reporting COVID-19 infections and deaths.  Note that OSHA will not enforce 300 Log recording requirements in connection with workers’ reactions to COVID-19 vaccination through May 2022.
• Setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
• Implementing protections against retaliation.
• Following other applicable mandatory OSHA standards.

In comparing OSHA’s updated guidance to its prior version, a number of changes were made related to the roles of employers and workers in responding to COVID-19, including its guidance on COVID-19 prevention programs.  For example, in addition to now permitting employers to treat differently vaccinated and non-vaccinated workers, OSHA also eliminated the recommendation to include certain elements in prevention programs, such as no longer needing to:

• Assign a workplace coordinator
• Identify where and how workers might be exposed to COVID-19 at work
• Provide guidance on screening and testing; and most notably

OSHA’s updated guidance clearly contemplates that employers will know who among their workforce is vaccinated and who is not, but it does not specify how employers should verify vaccination status.  The new ETS, however, does cover that, and we anticipate OSHA will use that element of the ETS as a benchmark.  Fortunately the ETS’s regulatory text around verification of vaccination status appears to be pretty flexible.  In the preamble to the ETS, OSHA states:

With regard to determining employees’ vaccination status, there are a number of ways employers could approach this.  For example, small employers may know that all employees are already vaccinated because it was a topic of conversation as people became eligible and received the vaccine.  Other employers may have required employees to be vaccinated and will have records of vaccinations because they or their agents, as permitted under other laws, administered a vaccine. Still others could, when otherwise not prohibited by law, ask employees to either provide documentation of, or attest to, their vaccination status.

Similarly, OSHA is likely to use its ETS provisions to shed light on other areas of its guidance; for example, return-to-work criteria.  OSHA’s ETS FAQs inform that an employer’s decision to return an employee to work must be made in accordance with applicable guidance from the CDC or guidance from a licensed healthcare provider, unless state or local public health authorities specify a longer period of removal.  The FAQ specifically references the “CDC’s Isolation Guidance,” stating that a COVID-19 positive person can stop isolating when three criteria are met:

1. at least ten days have passed since the first appearance of the person’s symptoms
2. the person has gone at least 24 hours without a fever (without the use of fever-reducing medication); and
3. the person’s other symptoms of COVID-19 are improving (excluding loss of taste and smell), and that, if a person has tested positive but never experienced symptoms, then the person can stop isolating after ten days from the date of their positive test.

While OSHA does make clear that its updated guidance is not a standard or regulation, and it creates no new legal obligations, OSHA does specifically reference its enforcement authority under the OSH Act’s General Duty Clause.  In light of that veiled threat and OSHA’s active COVID-19 National Emphasis Program, employers are advised to follow OSHA’s updated guidance essentially as though it is a regulation.