August 13, 2021 Update. On August 13, 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 reflects the Centers for Disease Control and Prevention (“CDC”) recommendation that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission. Our blog post on the updated Guidance is available here.
 
On June 10, 2021, OSHA updated its previously issued guidance to employers and workers in non-healthcare settings on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Among other things, the Guidance provides that, unless otherwise required by law, 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 prior iteration of the Guidance is available here. A detailed discussion of the Guidance follows.
 
The Guidance is intended to be viewed by non-healthcare employers “as recommendations to use in protecting unvaccinated or otherwise at-risk workers.” The Guidance “is not a standard or regulation, and it creates no new legal obligations.”

Recommendations for Vaccinated Employees. “Except for [healthcare employers] and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.”

OSHA further stated that employers “should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19,” including:

1. Granting paid time off for workers to get vaccinated;
2. Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19;
3. Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotating or staggering shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or the internet); or implementing flexible meeting and travel options, all for such workers;
4. Providing unvaccinated and otherwise at-risk workers with face coverings, unless their work task requires a respirator or other PPE;
5. Educating and training workers on COVID-19 policies and procedures using accessible formats and in language workers understand;
6. Suggesting that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests;
7. Maintaining ventilation systems in accordance with the CDC’s Ventilation in Buildings guidance, and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace;
8. Performing routine cleaning and disinfection;
9. Recording and reporting COVID-19 infections and deaths. Our blog post on OSHA’s COVID-19 recording and reporting obligations is available here;
10. Implementing protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
11. Following all other applicable mandatory OSHA standards.

Recommendations for Unvaccinated Employees. Unvaccinated or otherwise at-risk employees, “should follow [their employer’s] recommended COVID-19 precautions and policies,” which may include “measures such as telework and flexible schedules, enhanced cleaning programs with a focus on high-touch surfaces, engineering controls (e.g., ventilation), administrative policies (e.g., vaccination policies), personal protective equipment (PPE), face coverings, and physical distancing.” If an employer does not have a COVID-19 prevention program, employees may:

• Identify opportunities to get vaccinated;
• Properly wear a face covering over the nose and mouth; 
• Practice social distancing;
• Participate in any training offered by the employer/building manager to learn how rooms are ventilated effectively and notify the building manager if there are vents that are clogged, dirty, or blocked by furniture or equipment; and
• Practice good personal hygiene and wash hands often.

Recommendations for Higher-Risk Workplaces with Mixed-Vaccination Status Workers. Employers “should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the [below] types of factors.” These types of higher-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing.

Higher-risk workplace factors include:

• Close contact, where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines;
• Duration of contact, where unvaccinated or otherwise at-risk workers often have prolonged closeness to co-workers (e.g., for 8–12 hours per shift); and
• Type of contact, such that unvaccinated or otherwise at-risk workers may be exposed to the infectious virus through respiratory droplets in the air. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables.

Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workers include:

• Sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
• Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
• Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, employers should:

• Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least six feet of distance from others at all times, including on breaks.
• Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, and signs) as a reminder to maintain physical distancing.
• Implement strategies (tailored to the workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
   

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.