OSHA Issues COVID-19 Emergency Temporary Standards - Part Two
Mitigating and Preventing the Spread of COVID-19 in the Workplace Among Unvaccinated and At-Risk Employees

On Thursday, June 10, the United States Department of Labor's Occupational Safety and Health Administration (OSHA) did two things: (1) it issued an Emergency Temporary Standard (ETS) requiring employers to help protect healthcare workers in settings where suspected or confirmed COVID-19 patients are treated; and (2) it issued updated guidance on mitigating and preventing the spread of COVID-19 in all workplaces. We discuss the measures required by healthcare employers in Part One of our series. This advisory focuses on the latter, which was intended to help employers and workers not covered by the ETS to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection  

OSHA first issued guidance to employers on mitigating and preventing the spread of COVID-19 on January 29, 2021. It made changes to the previously-issued guidance on June 10, 2021. The changes include focusing protections on unvaccinated and otherwise at-risk workers, encouraging COVID-19 vaccination and updating links to guidance with the most up-to-date content. 

OSHA confirmed that unless otherwise required by federal, state, or other applicable law, rule, or regulation, employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure. As for unvaccinated or otherwise at-risk workers, employers should engage with workers to determine how to implement multi-layered interventions, including:

• Granting paid time off for employees to get vaccinated. Employers with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine.
• Instructing anyone infected with or showing symptoms of COVID-19 to stay home from work. Employers should ensure that absence policies are not punitive and should eliminate or revise policies that encourage workers to come to work when sick or when unvaccinated workers have been exposed to COVID-19. Employers with fewer than 500 employees may be eligible for refundable tax credits if they provide paid time off for sick and family leave for reasons related to COVID-19.
• Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. Employers may limit the number of unvaccinated or otherwise at-risk workers in one place at any given time by, for example, implementing flexible worksites. At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet away from other people, employers may install barriers to separate these workers from other people.
• Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. The CDC provides general guidance on masks and how to wear them, including that they must completely cover an employee's nose and mouth. In addition, employers may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting. Employers may also need to provide reasonable accommodation for employees who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need religious accommodation under Title VII under federal anti-discrimination laws. If an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards as well as other applicable industry-specific guidance.
• Educate and train workers on COVID-19 policies and procedures using accessible formats and in language they understand. 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; and (2) workplace policies and procedures implemented to protect workers from COVID-19 hazards. Communicate workplace policies clearly, frequently and using multiple methods. In addition, train managers on how to implement COVID-19 policies. Ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free form retaliation.
• Suggest that unvaccinated customers, visitors, or guests wear face coverings. For public-facing workplaces, employers may post a notice or otherwise suggest unvaccinated people wear face coverings, even if no longer required by the jurisdiction.
• Maintain ventilation systems. Employers may consider improving ventilation 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. Some measures to improve ventilation may be found here.
• 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.
• Record and report COVID-19 infections and deaths. Pursuant to mandatory OSHA rules, employers are responsible for recording work-related cases of COVID-19 illness if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined here); and (3) the case involves one or more relevant recording criteria. Employers must follow the requirements set forth here when reporting COVID-19 fatalities and hospitalizations to OSHA. Employers should also report outbreaks to health departments as required and support their contact tracing efforts. However, employers are not required to record worker side effects from COVID-19 vaccination through May 2022.
• Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards. Employers should ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against discrimination or retaliation for raising workplace safety and health concerns or engaging in other occupational safety and health activities.
• Follow other applicable mandatory OSHA standards. OSHA's standards that apply to protect workers from infection remain in place, including requirements for PPE, respiratory protection, sanitation, and requirements for employee access to medical and exposure records. In addition, healthcare workplaces will be covered by ETS.

Although OSHA's guidance is now stronger, it remains vague and continues to focus on safety principles previously expressed by OSHA and other state and federal entities. Furthermore, it does not create any new legal obligations. OSHA's guidance does, however, provide strategies and best practices for reducing the risks of exposure and contraction in workplace settings. For that reason, employers should review the guidance and analyze their own policies and practices with the assistance of counsel as it provides insight into what the Biden Administration will expect moving forward.