On August 13, 2021, OSHA released updated guidance for non-healthcare employers, Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace. The revised guidance, which is advisory in nature, largely incorporates the CDC’s recent recommendations, including masking for both unvaccinated and vaccinated employees. Below are a few takeaways from OSHA’s new guidance:
OSHA Advises Employers to Encourage or Mandate the COVID-19 Vaccination
OSHA emphasizes that the most effective way to protect against COVID-19 is to receive the COVID-19 vaccination, calling the vaccination a “key element in a multi-layered approach to protect workers.” As such, OSHA suggests that employers adopt policies requiring vaccinations or regular COVID-19 testing for unvaccinated employees, provide incentives for employees who receive the COVID-19 vaccine (e.g., paid time off), and work with public health authorities to provide vaccinations in the workplace. Citing to the CDC, OSHA further references a growing body of evidence suggesting that the approved COVID-19 vaccinations prevent symptomatic infection and high transmission.
Masks Are Important for All Employees Regardless of Vaccination Status
Incorporating the CDC’s guidance, OSHA also recommends that even fully vaccinated employees wear masks in areas of substantial or high transmission, stating that face coverings are “simple barriers” to COVID-19 infection. Unvaccinated and otherwise at-risk workers should also be required to wear masks, especially in those areas of substantial or high transmission. OSHA additionally recommends that employers provide face coverings to employees who request them at no cost and provide replacements as necessary. It also reminds employers that they must provide PPE when necessary and in accordance with mandatory OSHA standards and industry-specific guidance.
Physical Distancing Is Equally Important
In addition to masks, OSHA states that physical distancing is a key way to protect workers and limit the spread of COVID-19. In general, six feet of distance is recommended to be effective. OSHA also suggests that employers limit the number of unvaccinated or at-risk employees in one place in a given time while at work (e.g., flexible worksites, telework, staggered shifts, flexible meeting options, etc.). If unable to maintain distance, barriers or shields can also be used to block face-to-face interaction and prevent direct transmission among employees.
Infected Workers, Unvaccinated Workers in Close Contact with a Person Positive for COVID-19 Should Stay Home
Again borrowing from the CDC, OSHA states that workers who have been in close contact with another person who has tested positive for COVID-19 should stay home to prevent and reduce the risk of transmission. OSHA recommends that absence policies for such situations should be non-punitive in nature, further reminding employers that businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan Act if they provide paid time off to their employees.
Employee Protections Against Retaliation
Per Section 11(c) of the OSH Act, employers cannot discharge or otherwise discriminate against an employee for engaging in an occupational safety and health activity. Accordingly, if an employee raises a safety issue regarding COVID-19 and the workplace, employers should refrain from taking any discriminatory or retaliatory action against them. Likewise, it is important for employees to have a complaint procedure to raise such safety issues. OSHA suggests using a hotline or other method of anonymous reporting, as necessary.
Appendix: Certain Measures for Higher-Risk Workplaces
The appendix to OSHA’s new Covid-19 guidance provides additional recommendations for “higher-risk workplaces,” or those where vaccinated and unvaccinated employees work together in the same work environment. Manufacturing, meat/seafood/poultry processing, high-volume retail and grocery, and agricultural processing are all defined as “higher-risk workplaces.” For these places, OSHA recommends, staggering arrival, break, and departure times; avoiding congregating areas; visual cues as reminders for physical distancing; masking for employees, customers, and guests; improved ventilation; alternative placement for electronic payment terminals for guests; placement of solid, impermeable physical barriers where physical distancing is limited. For company vehicles, OSHA also recommends that employees wear masks and drive with windows open for ventilation purposes (weather permitting).
This latest guidance from OSHA explicitly states that it is advisory and creates no new legal obligation for employers. The recommendations are only intended to provide additional guidance to employers on keeping their workplaces safe and free from hazards. However, employers should keep in mind that OSHA has more frequently used the General Duty Clause of the OSH Act during the Biden administration in citing employers for COVID-related hazards not covered under an existing OSHA standard.
KJK will continue to monitor guidance from the CDC and OSHA relating to COVID-19 and requirements for employers. If you have questions or need more information on the OSHA guidance, contact Kirsten Mooney at 216.736.7239 or kbm@kjk.com, Rob Gilmore at 216.736.7240 or rsg@kjk.com, or one of KJK’s Labor and Employment professionals.