On June 10, 2021 the Occupational Safety and Health Administration (OSHA) released long-awaited updated guidance on what actions employers should take to mitigate the spread of COVID-19 in light of an increasingly vaccinated population. The guidance supplements, and does not replace or diminish, any applicable state or local orders. Note also that OSHA released on the same day a separate (916-page!) Emergency Temporary Standard (ETS) applicable to certain healthcare employers, which we blog about here.

OSHA’s guidance indicates that employers (except for those covered by the ETS and in public transportation settings) generally do not need to implement any special COVID-19 mitigation measures to protect employees who are fully vaccinated. However, employers must still take steps to protect unvaccinated and at-risk workers.  OSHA describes “at-risk” workers as individuals who may not get a full immune response to vaccination or cannot get fully vaccinated due to certain medical conditions (including those with weakened immune systems due to transplants, certain medications, and/or other medical conditions, per the CDC).

OSHA recommends implementing a multi-layered strategy to provide a safe and healthy workplace for unvaccinated and at-risk employees as follows:

• Grant paid time off for employees to get vaccinated.

• Instruct any workers (including vaccinated workers) with COVID-19 symptoms or a confirmed case of COVID-19 to stay home.

• Instruct unvaccinated workers who have had close contact with someone who tested positive for COVID-19 to stay home, and do not penalize them for staying home.

• Implement physical distancing measures for unvaccinated and otherwise at-risk workers in communal work areas. For example, employers should try to space unvaccinated/ at-risk workers at least six feet apart from each other and should limit the number of unvaccinated/ at-risk workers in one place at a given time using flexible work-from-home policies, staggered shifts, and transparent shields or other barriers.

• Provide face coverings or surgical masks (at no cost) to unvaccinated and at-risk workers. All workers should be supported in wearing face coverings if they choose.

• Suggest that unvaccinated customers, visitors, and guests wear face coverings.

• Provide education and training to employees on COVID-19 and your organization’s COVID-19 policies and procedures via multiple methods and on an ongoing basis. Ensure your workplace’s COVID-19 policies and precautions are clear and understandable (including in non-English languages as appropriate).

• Ensure employees know how to report questions or concerns about workplace safety and health; consider a hotline or other method for anonymous reporting/question-asking.

• Maintain ventilation in the workplace and ensure that any HVAC system is operating in accordance with the manufacturer’s instructions.

• Regularly clean and disinfect high-touch surfaces. Follow CDC recommendations if someone who has been in the workplace within 24 hours is suspected of having or has COVID-19.

OSHA also highlights the following requirements based on pre-existing OSHA standards and rules:

1. Record and report COVID-19 infections and deaths as required under OSHA rules in 29 CFR 1904. Employers need not record worker side effects from COVID-19 vaccination through May 2022.

2. Do not discriminate against or penalize any employee for speaking out about unsafe working conditions (including relating to COVID-19) or for reporting a COVID-19 exposure or other work-related illness. Ensure workers are protected from retaliation when reporting COVID-19 related hazards in the workplace.

3. When PPE (including respirators, for example) is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards.

Finally, the OSHA guidance highlights additional “best practices” to protect unvaccinated or otherwise at-risk workers in “higher risk” workplaces, which OSHA describes as any workplace where there is: close contact between unvaccinated or at-risk workers; prolonged close contact between unvaccinated or at-risk workers with other coworkers; an environment where unvaccinated or at-risk workers may be more exposed to infection through respiratory droplets in the air or contaminated surfaces; and/or an otherwise high-risk environment such as shared transportation, frequent contact with other unvaccinated or at-risk individuals in community settings with elevated community transmission, and communal housing. OSHA indicates the following as example “higher risk” workplaces: manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing.

OSHA’s best practices for any higher risk workplaces where there are unvaccinated or otherwise at-risk workers include:

1. Stagger break times or provide temporary break areas and restrooms to reduce high density congregation of unvaccinated/ at-risk workers.

2. Stagger workers’ arrival and departure times.

3. Provide visual cues (signs, floor markings, etc.) to remind workers to physically distance.

4. Improve ventilation in the workplace.

The guidance also offers a handful of specific recommendations for retail employers, workplaces with assembly lines, and employers who provide shared transportation for workers.

OSHA’s guidance provides a helpful framework for employers to comply with their legal duty under the General Duty Clause, especially in relation to unvaccinated and at-risk workers. We caution, however, that employers should exercise restraint before inquiring about employee medical conditions based on OSHA’s designation of “at-risk” workers. Employers should also continue to consult legal counsel in navigating this OSHA guidance in conjunction with other applicable federal, state, and local orders and law.