by | Jun 11, 2021

Today, OSHA provided much-anticipated COVID-19 guidance for multiple workplace environments that will help employers create policies and procedures as they continue to operate and/or reopen their businesses and offices.  OSHA provided guidance specific to three settings:  (1) an emergency temporary standard for healthcare settings; (2) guidance for employers outside the healthcare setting; and (3) additional guidance for higher risk workplaces (such as production facilities and workplaces with low level of immunization or high levels of exposure in the community).  Each of these are individual summarized below.

The guidance reiterates employers’ responsibility for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.  The guidance states, that except for workplace settings covered by the ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers, however, should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. 

1. Employers in Healthcare settings

OSHA issued a mandatory emergency temporary standard (ETS) outlining workplace safety parameters for employers in the health care sector for the duration of the pandemic (to protect healthcare workers) which will take effect once the ETS is published in the Federal Register (date unknown). The ETS will require employers in the health care sector to, among several other steps, develop a COVID-19 plan, provide PPE, ensure maintain social distancing and other safety protocols, ensure patients are properly screened for virus symptoms and provide workers paid time off to get vaccinated and recover from vaccine side effects as encouragement to get the shot. The ETS includes a carve-out for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are barred.  The ETS is available at https://www.osha.gov/coronavirus/ets.

2. Employers Outside Healthcare Settings

OSHA also issued voluntary guidelines for employers operating outside the health care context to protect unvaccinated workers, and provided an Appendix containing a separate set of measures deemed appropriate for higher-risk workplaces (such as production facilities where unvaccinated or at-risk workers work closely to one another, share transportation, live and work in community settings having elevated community transmission or share communal housing).  The updated guidance is available at https://www.osha.gov/coronavirus/safework#role-employers-workers.

OSHA states employers outside the healthcare industry (those that do not fall under the ETS) should take the following steps to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19:

A. Grant paid time off for employees to get vaccinated.

B. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19.

C. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

OSHA also suggests that employers can limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

Employers can also erect transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people to separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.

D. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.Such workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and help protect others and potentially themselves. Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.

Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost, including replacing face coverings that become wet or soiled and provide replacements frequently as needed.  Face shields can also be provided for use with face coverings to prevent face coverings from getting wet and soiled, but face shields do not provide sufficient protection by themselves.

Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.

Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.

E. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:

  1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.
  2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.
F. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests. This could include posting a notice or otherwise suggesting unvaccinated people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.

G. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated workers in particular. OSHA provides guidance on providing proper ventilation.

H. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards for hazard communication and PPE appropriate for exposure to cleaning chemicals.

I. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.  In an effort not to discourage workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022.

J. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.

Employers should ensure policies and procedures prohibit reprisal or discrimination against any employee for speaking out about unsafe conditions or reporting COVID infection or exposure or a work-related illness.

K. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens and OSHA's requirements for employee access to medical and exposure records. Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Where the ETS does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

3. Higher Risk Workplaces

OSHA added an additional recommended steps to those outlined above for higher-risk workplaces with mixed vaccination status workers include:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
  • Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildingsand in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:

  • Working on food processing or assembly lines can result in virus exposure because these workplaces have often been designed for a number of workers to stand next to or across from each other to maximize productivity. Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.
In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:

  • Suggest masks for unvaccinated (or unknown-status) customers and other visitors.
  • Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
  • Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
  • Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.
Employee Transportation.  Unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.  The following steps are suggested:

  • Notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle.
  • Make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings.
OSHA also notes that the CDC recommends that fully vaccinated people should:
  • Watch for symptoms of COVID-19, especially if they have been around someone who is sick. If they have symptoms of COVID-19, they should get tested and stay home and away from others.
  • Monitor for symptoms of COVID-19 for 14 days following an exposure.
  Torrey J. Gerdes
Baylor Evnen, LLP
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