On August 13, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) updated its guidance for employers in an effort to further protect workers from SARS-CoV-2, the virus that causes COVID-19 (“COVID”).  This update (the “Guidance”) reflects recent COVID developments, including the increased spread of the Delta variant and the July 27, 2021 Centers for Disease Control and Prevention’s (“CDC”) updated guidance, and is intended to help employers protect workers who are:  unvaccinated or partially vaccinated, otherwise at-risk, and/or fully vaccinated but located in areas of substantial or high community transmission.

The Guidance applies to employers who are not otherwise covered by the Emergency Temporary Standard for Healthcare.  The Guidance will be enforced through  the General Duty Clause of the Occupational Safety and Health Act (the “OSH Act”), which requires employers to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

Although the Guidance is not an official OSHA standard, the agency has used similar, past COVID guidance to issue citations to employers under the General Duty Clause.  OSHA’s National Emphasis Program for COVID, which permits OSHA to conduct programmed inspections of employers related to COVID, also remains in effect.  As a result, it is important that employers follow the revised guidance to protect employees and mitigate the risk of inspections and citations.

According to the Guidance, employers should provide masks to employees and require fully vaccinated workers in areas of substantial or high community transmission to wear masks to protect unvaccinated workers. Fully vaccinated workers who have had close contact with people with COVID should get tested for COVID three-to-five days after exposure, and employers should require them to wear a mask for fourteen days after their close contact unless they test negative.

Further, the Guidance encourages employers provide workers paid time off (“PTO”) for vaccinations and recovery from side effects.  Notably, OSHA explicitly suggests employers consider adopting policies that require workers to get vaccinated or undergo regular COVID testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.

The Guidance adopts recommendations analogous to the CDC’s, and as further detailed below, the Guidance continues to recommend employers implement multiple layers of workplace controls (e.g. mask wearing, distancing, increased ventilation, quarantine, and isolation).

The Guidance proposes employers engage with workers, or their representatives, to determine how to best implement multi-layered controls to protect unvaccinated and other at-risk workers, and further mitigate COVID’s workplace spread.  These controls include:

1. Instruct infected workers, unvaccinated workers who have had close contact with someone who tested positive for COVID, and all workers with COVID symptoms to stay home from work. OSHA expects absence policies be non-punitive, and employers should eliminate or revise policies that encourage workers to come to work sick or after being exposed to COVID.

2. Implement physical distancing in all communal work areas for unvaccinated and other at-risk workers. OSHA continues to maintain that a critical way to protect workers is to require physical distancing of at least six feet.

3. Educate and train workers on the employer’s COVID policies and procedures. Employers should train managers on how to implement COVID policies, and communicate such policies clearly, frequently, and through multiple mediums.  Communications should be in plain language that workers understand and be made accessible to workers with disabilities (including non-English languages, American Sign Language, or other accessible communication methods, as applicable).

4. Suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces such as retail establishments, and that, in areas of substantial or high transmission, all customers, visitors, or guests wear face coverings in public, indoor settings. The Guidance notes that this could include posting a notice or otherwise suggesting or requiring people to wear face coverings, even if no longer required by the employer’s or workplace’s jurisdiction.

5. Maintain Ventilation Systems. The Guidance endorses improving and maintaining ventilation systems, as OSHA asserts that a well-maintained ventilation system – when working properly – is a primary control measure to limit the spread of COVID in indoor workplaces.  Since the end of 2020, OSHA has made ventilation a focus of its inspections and enforcement efforts, so employers should ensure they heed this guidance.

6. Perform routine cleaning and disinfection. If someone who has been in the workplace within twenty-four hours is confirmed/suspected of having COVID, employers should follow the CDC’s cleaning and disinfection guidelines, as well as mandatory OSHA standards set forth in 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.

7. Record and report COVID infections and fatalities. The Guidance reiterates that, under mandatory OSHA rules found in 29 CFR part 1904, employers are required to record work-related COVID cases on OSHA’s Form 300 logs when:

• The case is a confirmed COVID case;

• It is work-related (as defined by 29 CFR 1904.5); and

• It involves one or more relevant recording criteria (see 29 CFR 1904.7) (e.g., medical treatment, days away from work, etc.).

Employers must follow 29 CFR part 1904’s reporting requirements regarding COVID fatalities and hospitalizations.  Notably, the Guidance ascertains that, with respect to recording adverse vaccine reactions, OSHA will not enforce 29 CFR part 1904’s requirement requiring employers to record worker’s side effects from COVID vaccines at least through May 2022, and OSHA will reevaluate its position then.

8. Implement protection from retaliation and set up an anonymous process for workers to raise concerns about COVID-related hazards. Employers should ensure that workers know who to contact with questions or concerns, and OSHA suggests this be accomplished by establishing an anonymous hotline.

The Guidance further recommends employers take additional steps to mitigate the spread of COVID due to the following workplace environmental factors:

• Close contact – where unvaccinated and other at-risk workers are working in close proximity: such as on production or assembly lines, in retail settings, or are near one another at other times, such as when clocking in/out, during breaks, or in locker/changing rooms.

• Duration of contact – where unvaccinated or other at-risk workers often have prolonged closeness to coworkers (e.g., for 6+ hours per shift).

• Type of contact – where unvaccinated and other at-risk workers may be exposed to COVID through air particles – for example, when infected workers in a manufacturing or factory setting cough or sneeze. It is also possible, though less likely, that exposure could occur from contact with contaminated surfaces/objects, such as tools, workstations, or break room tables.  The Guidance asserts that shared spaces such as break rooms, locker rooms, and interior hallways may also contribute to risk.

The means by which these risk factors are addressed, particularly for industries OSHA classifies as high risk, are the same measures that employers put in place last year – staggered arrival, departure and break times, floor markings, signage, etc.  Some employers may still have many of these measures in place.  Those employers who dismantled these additional precautions should give strong consideration to putting them back.

In addition, the Guidance reminds employers that all of OSHA’s rules and standards applicable to workers’ protection from infection remain in place.  These mandatory OSHA standards include, but are not limited to:  PPE requirements, respiratory protection, sanitation, protection from bloodborne pathogens, and requirements governing access to medical and exposure records.

Unfortunately, after a few months of relative consistency, employers are now back to a situation where they must grapple – again – with frequent changes at the federal, state, and local levels.  Employers can be confident that CDC guidance will be updated more frequently than OSHA guidance and employers also must follow renewed state and local requirements.   Hunton Andrews Kurth LLP will continue to monitor these and other workplace safety guidelines, and will provide additional guidance as appropriate