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’s (“CDC”) Interim Recommendations for Fully Vaccinated People, which recommends 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 CDC Recommendations for Fully Vaccinated People can be found here. A detailed discussion of the Guidance follows.

The Guidance is intended for non-healthcare employers as “recommendations to use in protecting unvaccinated workers and otherwise at-risk workers, and to help those workers protect themselves.” The Guidance “is not a standard or regulation, and it creates no new legal obligations.”

Recommendations for Vaccinated Employees. The Guidance reflects the CDC’s recommendations for fully vaccinated people. The Guidance states that under some circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take, however, “in light of evidence related to the Delta variant of the SARS-CoV-2 virus, the CDC updated its guidance to recommend that even people who are fully vaccinated wear a mask in public indoor settings in areas of substantial or high transmission, or if they have had a known exposure to someone with COVID-19 and have not had a subsequent negative test 3–5 days after the last date of that exposure.”

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

1. Facilitating Vaccinations. The Guidance states employers should grant paid time off for employees to get vaccinated and recover from any side effects, and that employers should consider working with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. The Guidance also suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing—in addition to mask wearing and physical distancing—if they remain unvaccinated.
    
2. Infected, Unvaccinated, or Close Contacts with Positive COVID Cases. The Guidance also advises employers to instruct (i) any workers who are infected, (ii) unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and (iii) 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. As recommended by the CDC, fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3–5 days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result. People who are not fully vaccinated should be tested immediately after being identified, and, if negative, tested again in 5–7 days after last exposure or immediately if symptoms develop during quarantine.
    
3. Physical Distancing. The Guidance suggests that employers implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. 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.
    
4. Face Coverings. The Guidance also advises employers to provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. The Guidance states that in addition to unvaccinated and otherwise at-risk workers, the CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at-risk or have someone in their household who is at-risk or not fully vaccinated.
    
5. Training. The Guidance encourages employers to educate and train workers on COVID-19 policies and procedures using accessible formats and in language workers understand.
    
6. Public-Facing Roles. The Guidance also advises that employers suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.
    
7. Ventilation. The Guidance notes that employers should consider 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. Cleaning. The Guidance also states that employers should perform routine cleaning and disinfection.
    
9. Reporting to OSHA. The Guidance reminds employers of the requirements to record and report certain workplace COVID-19 infections and deaths. Our blog post on OSHA’s COVID-19 recording and reporting obligations is available here.
    
10. Non-Retaliation. The Guidance also reminds employers to consider implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

Recommendations for Unvaccinated Employees. The Guidance states that multi-layered controls tailored to the workplace are “especially important for those workers who are unvaccinated or otherwise at-risk.” The Guidance recommends that unvaccinated or otherwise at-risk individuals can help protect themselves by taking the following steps:

• Vaccination. Get a COVID-19 vaccine as soon as possible;
   
• Face Covering. Properly wear a face covering over the nose and mouth, and choose higher quality masks to provide a greater measure of protection;
   
• Social Distancing. Practice social distancing;
   
• Training. Participate in any training offered by the employer/building manager to learn how rooms are ventilated effectively, encourage employers to provide such training if it does not already exist, and notify the building manager if there are vents that are clogged, dirty, or blocked by furniture or equipment;
   
• Hygiene. Practice good personal hygiene and wash hands often; and
   
• Testing. Get tested regularly, especially in areas of substantial or high community transmission.