On August 13, 2021, the Occupational Safety and Health Administration (OSHA) issued updated guidance to help employers protect workers from the coronavirus. The updated guidance reflects an alignment with the Centers for Disease Control (CDC) and Prevention’s updated COVID-19 guidance issued July 27, 2021. The guidance also emphasizes that vaccination is the best solution to protect workers and encourages employers to engage with workers and/or their representatives to implement multi-layered approaches to protect unvaccinated or otherwise at-risk workers from COVID-19.
The updated guidance expands information on appropriate measures for protecting workers in high-risk workplaces with a population of mixed-vaccination status and where there may be prolonged close contact with others, such as manufacturing, meat, seafood and poultry processing, high volume retail and grocery, and agricultural processing.
Following the CDC guidance, OSHA now recommends that fully vaccinated employees:
- Wear a mask in public indoor settings in areas of substantial or high transmission;
- Wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
- Get tested three to five days following a known exposure to someone with a suspected or confirmed COVID-19 case and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.
OSHA’s guidance does not elaborate on what is consider a “public indoor setting”. As for determining whether a worksite is located in an area of substantial or high transmission, OSHA is relying on the CDC’s county-by-county COVID tracker.
OSHA continues to reiterate that workers should maintain a distance of at least six feet from others, if possible; wash hands; cover their nose and mouth with a tissue or elbow when sneezing or coughing; and use face coverings, even for vaccinated workers as they are still capable of spreading COVID-19.
Next Steps for Employers
It should be noted that this guidance does not have the weight of law, so it creates no new legal obligations for employers. However, employers still must comply with any applicable safety and health standards and regulations enforced either by OSHA or by an OSHA-approved state plan or other state or local laws. That includes obligations under existing OSHA standards that may apply to COVID-19 hazards such as the injury and illness recordkeeping standard, requirements for the provision of PPE, respiratory protection and hazard communication.
It should also be noted that the OSHA’s General Duty Clause allows OSHA inspectors to cite an employer under its general duty standard which can most any situation, so while the guidance is advisory, employers should assume it reflects OSHA’s interpretation of the General Duty Clause.
Further, it should be noted that this guidance does not apply to those covered by the agency’s Emergency Temporary Standard (ETS) for Healthcare. Employers covered by the ETS should continue to follow the standards outlined by the agency.
