June 15, 2021 Update. On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance provides that, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Our blog post on the updated guidance is available here.   On January 29, 2021, OSHA issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement the Guidance. The Guidance has been issued for “planning purposes” and “is not a standard or regulation, and it creates no new legal obligations.” The Guidance contains recommendations and descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, and are intended to assist employers in providing and abating hazards (potentially including workers that may have COVID-19) likely to cause death or serious physical harm as part of their obligation to provide a safe and healthy workplace.

This Guidance was issued in response to an executive order issued by President Biden on January 21, 2021, ordering OSHA to issue new science-based guidance to protect workers and enhance workplace health and safety during the COVID-19 pandemic.

Our blog post on OSHA’s Enforcement Guidance on Reporting COVID-19 Cases is available here, and our blog post on OSHA’s General Guidance on Returning to Work is available here. Our memorandum to clients regarding the U.S. Department of Labor’s Workplace Guidelines for Coronavirus Outbreak, Including Specific Guidance on FMLA, FLSA and FECA is available here.

A detailed discussion of the Guidance follows.
What Workers Need to Know about COVID-19 Protections in the Workplace. The Guidance provides the following information for workers:

• Distancing. Workers should generally stay at least 6 feet (2 arms’ lengths) from other people so as to not breathe in particles produced by an infected person. OSHA reminds workers that “this is not a guarantee [against infection], especially in enclosed spaces or those with poor ventilation.”
• Hygiene. Workers should practice good personal hygiene and wash their hands often. OSHA also encourages workers to always cover their mouths and noses with a tissue or the inside of their elbow when coughing or sneezing. OSHA also warns workers, “do not spit.”
• Monitor Health. Workers should monitor their health daily and be alert for COVID-19 symptoms (e.g., fever, cough, shortness of breath, or other symptoms of COVID-19).
• Face Coverings. Face coverings are simple barriers to help prevent respiratory droplets or aerosols from reaching others. Not all face coverings are the same; the CDC recommends that face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.
  • The main function of wearing a face covering is to protect those around the wearer, in case the wearer is infected but not showing symptoms. Studies show that face coverings reduce the spray of droplets when worn over the nose and mouth.
  • Although not their primary value, studies also show that face coverings can reduce wearers’ risk of infection in certain circumstances, depending upon the face covering.
  • Workers should wear a face covering even if they do not feel sick. This is because people with COVID-19 who never develop symptoms (asymptomatic) and those who are not yet showing symptoms (pre-symptomatic) can still spread the virus to other people.
  • It is especially important to wear a face covering when an individual is unable to stay at least 6 feet apart from others since COVID-19 spreads mainly among people who are in close contact with one another. Wearing a face covering, however, does not eliminate the need for physical distancing or other control measures (e.g., handwashing).
  • It is important to wear a face covering and remain physically distant from co-workers and customers even after receiving a vaccination because it is not known at this time how vaccination affects transmissibility.
     
• Prevention Programs. Many employers have established COVID-19 prevention programs that include steps to keep workers safe, such as implementing telework plans, flexible schedules, and providing personal protective equipment (“PPE”) and face coverings. Workers should ask their employers about plans in their workplace.

COVID-19 Prevention Program. The Guidance states that under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. The Guidance then provides: “Implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.”

The Guidance states that the most effective COVID-19 prevention programs include the following elements:

1. Assignment of a workplace coordinator who will be responsible for COVID-19 issues on the employer’s behalf.
    
2. Identification of where and how workers might be exposed to COVID-19 at work. This includes a thorough hazard assessment to identify potential workplace hazards related to COVID-19. This assessment will be most effective if it involves workers (and their representatives) because they are often the people most familiar with the conditions they face. 
    
3. Identification of a combination of measures that will limit the spread of COVID-19 in the workplace, in line with the principles of the hierarchy of controls. This should include a combination of eliminating the hazard, engineering controls, workplace administrative policies, PPE, and other measures, prioritizing controls from most to least effective, to protect workers from COVID-19 hazards. Key examples include:
    
   • Eliminating the hazard by separating and sending home infected or potentially infected people from the workplace;
   • Implementing physical distancing in all communal work areas;
   • Installing barriers where physical distancing cannot be maintained;
   • Suppressing the spread of the hazard using face coverings;
   • Improving ventilation;
   • Using applicable PPE to protect workers from exposure;
   • Providing the supplies necessary for good hygiene practices; and
   • Performing routine cleaning and disinfection.

4. Consideration of protections for workers at higher risk for severe illness through supportive policies and practices. Older adults and people of any age who have serious underlying medical conditions are at higher risk for severe illness from COVID-19. Workers with disabilities may be entitled to reasonable accommodations under the Americans with Disabilities Act (“ADA”) that protect them from the risk of contracting COVID-19. Where feasible, employers should consider reasonable modifications for workers identified as high risk who can do some or all of their work at home (part- or full-time), or in less densely occupied, better-ventilated alternate facilities or offices.
    
5. Establishment of a system for communicating effectively with workers in a language they understand. Ask workers to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace. Communicate to workers, in a language they can understand and in a manner accessible to individuals with disabilities, all policies and procedures implemented for responding to sick and exposed workers in the workplace.

6. Educate and train workers on COVID-19 policies and procedures using accessible formats and in a language they understand. Communicate supportive workplace policies clearly, frequently, in plain language that 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, and via multiple methods to employees, contractors, and any other individuals on site, as appropriate, to promote a safe and healthy workplace. Communications should include:
    
   • Basic facts about COVID-19, including how it is spread and the importance of physical distancing, use of face coverings, and hand hygiene;
   • Workplace policies and procedures implemented to protect workers from COVID-19 hazards (the employer's COVID-19 prevention program); and
   • Some means of tracking which workers have been informed and when.

7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored.
    
8. Minimize the negative impact of quarantine and isolation on workers. When possible, allow workers to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace. The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.
    
9. Isolate workers who show symptoms at work. Workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift should immediately be separated from other workers, customers, and visitors, sent home, and encouraged to seek medical attention.
    
10. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. If someone who has been in the facility is suspected or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. This includes:
     
    • Closing areas used by the potentially infected person for enhanced cleaning.
    • Opening outside doors and windows to increase air circulation in the area.
    • Waiting as long as practical before cleaning or disinfecting (24 hours is optimal).
    • Cleaning and disinfecting all immediate work areas and equipment used by the potentially infected person, such as offices, bathrooms, shared tools and workplace items, tables or work surfaces, and shared electronic equipment like tablets, touch screens, keyboards, and remote controls.
    • Vacuuming the space if needed. Use a vacuum equipped with a high-efficiency particulate air (HEPA) filter, if available. Wait until the room or space is unoccupied to vacuum.
    • Providing cleaning workers with disposable gloves. Additional PPE (e.g., safety glasses, goggles, aprons) might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash.
    • After cleaning, List N: Disinfectants for use against SARS-CoV-2.
    • Following requirements in OSHA standards 29 C.F.R. 910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
    
    Once the area has been appropriately disinfected, it can be opened for use. Workers without close contact with the potentially infected person can return to the area immediately after disinfection.
    
    If it is more than seven days since the infected person visited or used the facility, additional cleaning and disinfection is not necessary. Continue routine cleaning and disinfection, described below.
     
11. Provide guidance on screening and testing. Follow state or local guidance and priorities for screening and viral testing in workplaces. Testing in the workplace may be arranged through a company’s occupational health provider or in consultation with the local or state health department. Employers should inform workers of employer testing requirements, if any, and availability of testing options. The CDC has published strategies for consideration of incorporating viral testing for SARS-CoV-2, the virus that causes COVID-19, into workplace COVID-19 preparedness, response, and control plans.
    
    Performing screening or health checks is not a replacement for other protective measures such as face coverings and physical distancing. Asymptomatic individuals or individuals with mild non-specific symptoms may not realize they are infected and may not be detected during through screening.
     
12. Record and report COVID-19 infections and deaths. 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 by 29 C.F.R. 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 C.F.R. 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 C.F.R. 1904 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. Our blog post on OSHA’s Revised Enforcement Guidance on Reporting COVID-19 Cases is available here.
    
    In addition, employers should be aware that reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer or OSHA would constitute a violation of the OSH Act. 29 C.F.R. 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.
     
13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards. The OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. For example, employers may not discriminate 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 wearing their own personal protective equipment, 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; also consider using a hotline or other method for workers to voice concerns anonymously.
     
14. Make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.
     
15. Do Not distinguish between workers who are vaccinated and those who are not. Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person to person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
     
16. Other applicable OSHA Standards. All of OSHA's standards that apply to protecting workers from infection remain in place. These standards include: requirements for PPE (29 C.F.R. 1910.132 and 133), respiratory protection (29 C.F.R. 1910.134), sanitation (29 C.F.R. 1910.141), protection from blood borne pathogens (29 C.F.R. 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 C.F.R. 1910.1020). There is no OSHA standard specific to COVID-19; however, employers still are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.

Additional Detail on Key Measures for Limiting the Spread. The Guidance provides additional information for employers on how to control the spread of COVID-19 in the workplace:

Eliminate the Hazard by Separating and Sending Home Infected or Potentially Infected People from the Workplace. One key element involves eliminating the hazard, which means isolating workers who are infected or potentially infected so they cannot infect other workers. Most employers will follow a symptom-based strategy for identifying and separating and sending home workers. However, there are certain circumstances where employers may consider a COVID-19 test-based strategy.

• Workers who have or likely have COVID-19 should be isolated until they meet CDC guidelines for exiting isolation. State and local guidelines may also apply.
• Workers should quarantine if they have been exposed to COVID-19. Local public health authorities determine and establish the quarantine options for their jurisdictions, and the CDC also provides guidance.
• Employers may consider permitting critical infrastructure workers to continue to work in limited instances when it is necessary to preserve the function of critical infrastructure workplaces.

 
Implement Physical Distancing in All Communal Work Areas. The best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person—generally at least 6 feet—although this is not a guarantee of safety, especially in enclosed spaces or spaces with poor ventilation.

• Limit the number of people in one place at any given time:
  • Implement flexible worksites (e.g., telework).
  • Implement flexible work hours (e.g., rotate or stagger shifts to limit the number of workers in the workplace at the same time).
  • Deliver services remotely (e.g., phone, video, web).
  • Implement flexible meeting and travel options (e.g., postpone non-essential meetings or events, in accordance with state and local regulations and guidance on size limits for meetings).

• Increase physical space:
  • Between workers at the worksite to at least 6 feet. This may require modifying the workspace or slowing production lines.
  • Between workers and customers by adjusting business practices to reduce close contact with customers — for example, by moving the electronic payment terminal/credit card reader farther away from the cashier, or by providing drive-through service, click-and-collect online shopping, shop-by-phone, curbside pickup, and delivery options.

• Alter workspaces to help workers and customers maintain physical distancing and physically separate workers by at least 6 feet from each other and from customers. Methods of physical distancing include signs, tape marks, decals, or other visual cues, placed 6 feet apart, to indicate where to stand.
• Shift primary stocking activities to off-peak or after hours, to reduce contact with customers.
• Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.
• Other measures that may reduce close contact:
  • Close or limit access to common areas where workers are likely to congregate and interact.
  • Prohibit handshaking or other forms of physical contact.
  • Ensure that all businesses and employers sharing the same workspace follow this guidance.

• When work tasks do not allow for adequate physical distancing, employers should check for additional industry-specific guidance.

 
Install Barriers Where Physical Distancing Cannot Be Maintained. At fixed workstations where workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., Plexiglas, flexible strip curtains) should be installed to separate workers from other people.

• The barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets. The posture (sitting or standing) of users should be considered when designing and installing barriers.
• Where an opening in the barrier is necessary to permit the transfer of items, the opening should be as small as possible.
• Barriers do not replace the need for physical distancing—6 feet of separation should be maintained between individuals whenever possible.

 
Suppress the Spread of the Hazard Using Face Coverings. Provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator. Employers should provide face coverings to the workers at no cost. Employers must discuss the possibility of reasonable accommodations under the ADA for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability. In workplaces with employees who are deaf or have hearing deficits, employers should consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading.

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.

Require any other individuals at the workplace (e.g., visitors, customers, non-employees) to wear a face covering unless they are under the age of two or are actively consuming food or beverages on site.

• Wearing a face covering that covers the nose and mouth is a measure to contain the wearer’s respiratory droplets and helps protect others. It may also protect the wearer.
• Wearing a face covering does not eliminate the need for physical distancing of at least 6 feet apart.
• For operations where the face covering worn by workers can become wet and soiled, provide workers with replacements daily or more frequently. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves.
• Workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may consult with an occupational safety and health professional to determine the appropriate face covering/respirator for their setting.

 
Improve Ventilation. The CDC has released guidance about ways to improve ventilation and prevent the spread of COVID-19 in buildings. The OSHA Guidance also refers employers to information published by ASHRAE regarding Guidance for Building Operations During the COVID-19 Pandemic.

Use Personal Protective Equipment When Necessary. When the measures described above cannot be implemented or do not protect workers fully, OSHA standards require employers to provide PPE to supplement other controls.

• Determine what PPE is necessary to protect workers.
• Provide all PPE, if necessary, including respirators (N95 filtering face piece respirators or better, including elastomeric respirators, without exhalation valves or vents), face shields, protective gowns, and gloves, to the workers at no cost.
• Make sure to provide PPE in accordance with relevant OSHA standards and other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 C.F.R. 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR parts 1910.132 and 133.
• There are times when PPE is not required under OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a “reasonable accommodation” under the ADA, or other workers may want to use it if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness or wearing a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances.

Provide the Supplies Necessary for Good Hygiene Practices. The Guidance states that employers should ensure that workers, customers, and visitors have supplies to clean their hands frequently and cover their coughs and sneezes:

• Provide tissues and no-touch trash cans.
• Provide soap and warm or tepid water in the workplace in fixed worksites. If soap and water are not readily available, use alcohol-based hand sanitizer that is at least 60% ethanol or 70% isopropanol. Ensure that adequate supplies are maintained, and follow safe handling and storage requirements for sanitizer supplies and similar flammable liquids.
• Place touchless hand sanitizer stations in multiple locations to encourage hand hygiene.
• Provide workers with time to wash their hands often with soap and water (for at least 20 seconds) or to use hand sanitizer. Inform workers that if their hands are visibly dirty, soap and water is preferable to hand sanitizer. Key times for workers to clean their hands include:
  • Before and after work shifts
  • Before and after work breaks
  • After blowing their nose, coughing, or sneezing
  • After using the restroom
  • Before and after eating or preparing food
  • After putting on, touching, or removing PPE or face coverings
  • After coming into contact with surfaces touched by other people
     
• Place posters that encourage hand hygiene and physical distancing to help stop the spread of COVID-19 at the entrance to the workplace and in other workplace areas where they are likely to be seen. This should include signs for non-English speakers, as needed.
• Promote personal health monitoring and good personal hygiene, including hand washing and good respiratory etiquette.
• Supplies necessary for good hygiene should be provided to the workers at no cost.

Perform Routine Cleaning and Disinfection. The Guidance states that employers should follow the CDC Guidance for Cleaning and Disinfecting to develop, implement, and maintain a plan to perform regular cleanings to reduce the risk of exposure to COVID-19.

• Routinely clean all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs.
  • If surfaces are dirty, clean them using a detergent or soap and water before disinfecting them.
  • For disinfection, most common, EPA-registered, household disinfectants should be effective. A list of products that are EPA-approved for use against the virus that causes COVID-19 is available on the EPA website. Follow the manufacturer's instructions for all cleaning and disinfection products (e.g., concentration, application method, contact time).
     
• Do not share objects or tools between workers, but if shared tools are required, ensure appropriate cleaning and disinfection is performed between uses.
• Provide disposable disinfecting wipes so that workers can wipe down commonly used surfaces (e.g., doorknobs, keyboards, remote controls, desks, electronic payment terminals, other work tools and equipment) before each use.
• Store and use disinfectants in a responsible and appropriate manner according to the label.
• Do not mix bleach or other cleaning and disinfection products together. This can create toxic vapors.
• Advise workers always to wear gloves appropriate for the chemicals being used when they are cleaning and disinfecting and that they may need additional PPE based on the setting and product.

As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.