OSHA Issues Updated COVID Guidance – Same Rules (Mostly), Different Day

September 8, 2021

Nearly a year and a half since the pandemic began, and government continues to revise guidance and rules for businesses who must continue working in a challenging environment.  COVID continues to impact our everyday lives, at home and at work.  Just when we think we understand the virus and have it under control, things change again.  Meanwhile, federal, state and local governments are trying to react in real time.  The Occupational Health and Safety Administration (“OSHA”), the federal agency responsible for enforcing the Occupational Health and Safety Act (the “Act”), recently updated its Guidance regarding COVID.

The new Guidance focusses on how employers can protect workers who are unvaccinated, not fully vaccinated, or are otherwise at-risk to more serious infection from exposure to COVID-19.   As for those who are vaccinated, the Guidance expressly adopts the conclusions of the CDC that COVID infections in fully vaccinated people happen only a small proportion of the time, and are mild even when they occur.  Even so, the Guidance nonetheless incorporates new suggestions for masking and testing for even fully vaccinated workers in areas of high community transmission.

The good news is that the new Guidance does not materially change what employers have been advised to do for some time to keep their workers safe from COVID.  In large part, the Guidance reiterates the layered approach to COVID-prevention that we have all come to know and understand over the course of this pandemic.

Here is a summary of the OSHA’s recommendations for employers as set forth in the new Guidance:

  1. Vaccinate. Facilitate employees getting vaccinated, including by granting paid time off or working with local public health authorities to provide vaccinations in the workplace.  Employers should follow EEOC Guidance regarding vaccination programs, including with regard to maintaining medical information as confidential and providing reasonable accommodation for religious practice and disabilities as required by law.
  2. Quarantine. Make and enforce policies and procedures that require workers who are infected stay at home to prevent the risk of further transmission. Those not fully vaccinated who have been merely exposed (i.e., have had “close contact” with someone tested positive with the COVID-19 virus) should be quarantined and tested immediately, even if they remain asymptomatic. If the test is negative, the exposed person should test again 5-7 days after the last exposure or immediately if symptoms develop during quarantine. Fully vaccinated people who have been exposed by “close contact” with a known positive person should get tested 3-5 days after exposure and wear a mask in indoor public places for 14 days or until they receive a negative test, but they need not quarantine if they remain asymptomatic.  On top of that, all workers (regardless of vaccination status) with COVID-19 symptoms must be quarantined at home immediately and tested as well.  To facilitate quarantine, the Guidance encourages employers to ensure that absence policies are non-punitive when it comes to COVID, and to eliminate policies that encourage works to come to work sick.  For more information, refer to the CDC general quarantine guidance, and the CDC guidance specifically addressing quarantine rules for the fully vaccinated.
  3. Social Distance. Implement physical distancing in common work areas for unvaccinated and otherwise at-risk workers.  Distancing at least 6 feet is recommended by OSHA and the CDC.  The Guidance also recommends providing transparent shields or other solid barriers at fixed work stations where unvaccinated at otherwise at-risk works are not able to physically distanced at least 6 feet.
  4. Mask. Provide workers with face coverings or surgical masks as appropriate unless the task requires more significant PPE such as a respirator under applicable industry rules.  Employers are also advised to suggest or require that unvaccinated customers, visitors or guests wear face coverings in retail, restaurant and other public-facing workplaces, and that all customers visitors or guests wear face coverings in public indoor settings where there is substantial or high transmission.  The Guidance adopts the CDC recommendation that even fully vaccinated workers wear masks in public indoor settings in areas of substantial or high transmission.  The Guidance calls for employers to provide face coverings at no cost to workers who request them.  Moreover, when an employer determines that PPE is necessary to protect unvaccinated and at-risk workers from exposure to COVID, the employer must provide PPE in accordance with relevant mandatory OSHA standards, and in accordance with other applicable industry-specific standards.
  5. Ventilate. Improve the ventilation system as necessary to reduce the concentration of viral particles in indoor air, because COVID-19 is believed to spread more readily indoors.  The Guidance suggests CDC’s Ventilation in Buildings and the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace as a place
  6. Clean. If someone in the physical facility within 24 hours is suspected or confirmed to have COVID-19, employers should follow CDC cleaning and disinfection recommendations.  Mandatory OSHA standards set forth in 29 CFR 1910.1200 and 1910.132, 133 and 138 for hazard communication and PPE must also be followed.
  7. Train. Educate and train workers on COVID-19 policies and procedures to be implemented in the workplace to protect against COVID-19 hazards, and use disability-accessible format as appropriate.  Training should include at a minimum, education on basic facts about what COVID is and how it spreads, as well as the importance of distancing, ventilation, vaccination, face coverings and hand hygiene.
  8. Report. Under OSHA reporting regulations, employers are required to record and report work-related cases of COVID-19 on OSHA’s Form 300 logs.  This reporting requirement applies if 1) the case is a confirmed case of COVID-19, 2) the case is work-related, as defined by the Act, and 3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work).   Importantly, these reporting and recording rules do not apply to COVID-19 vaccines symptoms.  This means that employers need not record worker side effects from COVID vaccinations at least through May 2022.
  9. No Discrimination or Retaliation. Avoid discrimination, retaliation, or reprisal of any kind against an employee for speaking about unsafe working conditions or reporting a COVID-19 infection or exposure to the employer or a government agency.  Such discrimination and retaliation are prohibited by the Act.  The Guidance also suggests implementing procedures and protocols to protect against discrimination and retaliation, including by setting up an anonymous process for workers to voice concerns about COVID-19 related hazards. Beware: it could be unlawful– by soliciting protected and private health information – for employers to try to figure out which employees are high-risk for COVID-19 infection.
  10. Accommodate for Disabilities. Employers should provide reasonable accommodations in accordance with the Americans with Disabilities Act for qualified workers with disabilities who, because of a disability, cannot be protected by vaccination, cannot be vaccinated or cannot use face coverings.
  11. Mandatory Standards. Follow all mandatory OSHA standards for protecting workers from infection, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records as more fully set forth in the Act.

Except where a rule is clearly indicated as mandatory, the new OSHA Guidance is merely advisory in nature.  Still the Act’s General Duty Clause requires employers to provide workers with safe and healthy workplaces free from recognized hazards that are causing or likely to cause death or serious physical harm.  Employers should therefore follow OSHA’s Guidance.   And they should do so, not just for those who are unvaccinated or at-risk of serious infection, but for all workers at least while there is high community transmission.  The new OSHA Guidance does not advocate for safety procedures that are that different from what has been recommended by the CDC, OSHA and state and local health departments all along.  It also seems clear at this point that it will be a long time that the risk of COVID-19 can be completely eliminated.  Employers should therefore incorporate safety protocols that help minimize the risk of COVID-19 to their workers so that businesses can stay open and function as close to normal as possible given the new, continuing reality of COVID-19.