On August 13, 2021, The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued updated guidance to help employers protect workers from COVID-19.
The guidance is designed to help employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk (as defined in the text box below), including if they are immunocompromised, and also implement new guidance involving workers who are fully vaccinated but located in areas of substantial or high community transmission.
The updated guidance reflects developments in science and data, including the Centers for Disease Control and Prevention’s (“CDC”) updated COVID-19 guidance issued July 27.
Key Guidance Updates
Preliminary evidence suggesting that fully vaccinated people who become infected with the Delta variant can be infectious and can spread the virus to others. This evidence led the CDC to update recommendations for fully vaccinated people to reduce their risk of becoming infected with the Delta variant and potentially spreading it to others.
OSHA’s latest guidance adopts analogous recommendations, including the following:
- Fully vaccinated workers in areas of substantial or high community transmission should wear masks in order to protect unvaccinated workers;
- Fully vaccinated workers who have close contacts with people with COVID should wear masks for up to 14 days unless they have a negative coronavirus test at least 3-5 days after such contact;
OSHA’s new guidance also clarifies recommendations to protect unvaccinated workers and other at-risk workers in manufacturing, meat and poultry processing, seafood processing and agricultural processing.
OSHA’s Suggested Role for Employers
Employers have a general duty of care under the OSH Act, to provide a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. To satisfy this standard OSHA’s guidance encourages employers to 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.
Key recommendations include the following:
- Facilitate employees getting vaccinated;
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID, and all workers with COVID-19 symptoms to stay home from work;
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers;
- Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE;
- Educate and train workers on COVID-19 policies and procedures;
- Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission; and
- Perform routine cleaning and disinfection.
Additional Employer Suggestions
The OSHA recommendations are advisory in nature and informational in content. OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19.
Accordingly, OSHA strongly encourages employers to:
- Provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects;
- Consider working with local health authorities to provide vaccinations for unvaccinated employees; and
- Consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
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