By: Conn Maciel Carey’s COVID-19 Taskforce
On June 10th, federal OSHA published significant updates 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.
At its core, OSHA’s new guidance was updated to align with CDC’s May 13, 2021 guidance regarding relaxing requirements for vaccinated individuals and 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.
Importantly, 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.
- Setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
- Implementing protections against retaliation.
The recommendation that employers engage with workers and their representatives (such as labor unions) will likely spur requests to meet and negotiate over what the employer is doing to implement these steps, and the recommendation to have an anonymous process for workers to voice concerns about COVID-19 hazards could lead to a rise of internal investigations and workplace responses.
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. Thus, as more employers increase their efforts to safety return their employees to the workplace this Summer and Fall, it would be prudent for employers to review the recommendations set forth in OSHA’s guidance and update their policies and procedures, including training of employees, accordingly.