Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 13, 2021, OSHA issued updated guidance to better align with the Centers for Disease Control and Prevention’s July 27, 2021 recommendations, given the rising cases of the COVID-19 Delta variant. The guidance’s purpose is to summarize the CDC’s “substantial or high transmission” guidance and assist employers in recognizing and abating COVID-19 hazards in the workplace. In the guidance’s preamble, OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes to get vaccinated and recover from side effects, and to consider working with local public health authorities to provide vaccinations in the workplace. OSHA 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.”
The “new” guidance is primarily a reiteration of the OSHA guidance from January, which was updated on June 10, 2021, when OSHA issued its Health Care Emergency Temporary Standard. However, the guidance is further updated to include CDC’s more recent face-masking recommendations and includes a checklist with recommendations on how to develop practices and procedures to protect unvaccinated and high-risk employees. The new guidance is not a formally established standard or regulation, and it creates no new legal obligations for employers. Nevertheless, employers are still required to provide a safe workplace for employees under the Occupational Safety and Health Act’s General Duty Clause, and this guidance serves as an expectation that OSHA has regarding implementation of practices that are consistent and/or equally protective to avoid citations.
What Employers Need to Know
OSHA’s June 10, 2021 guidance focused on nonvaccinated and at-risk workers, stating that vaccinations were effective in preventing the spread of COVID-19 and fully vaccinated individuals did not need to wear face coverings or practice physical distancing. The guidance follows CDC’s new recommendations, published after rising cases due to the Delta variant, to follow the CDC’s COVID-19 Integrated County View Data Tracker to designate areas with “substantial or high transmission” rates. The CDC's updated guidance recommends fully vaccinated workers wear masks in areas of substantial or high community transmission if they work in workplaces with heighted risk due to the work environment (as described below). The guidance further recommends that employees in other non-substantial or high-risk community areas wear masks if there has been close contact exposure for 14 days or until individuals receive a negative COVID test sometime between 3-5 days after close contact.
OSHA’s updated guidance indicates that to protect employees during these substantial or high transmission rates, employers should create a multi-layered intervention process to mitigate the spread of COVID-19 in the workplace. Such steps include but are not limited to:
- Encouraging and facilitating employees to get the vaccination by providing paid time off, working with local agencies to provide vaccinations in the workplace, and adopting policies that require employees to get vaccinated.
- Instructing employees to stay at home if they had close contact with someone who tested positive for COVID-19.
- Implementing physical distancing in the workplace. Employers should determine if there are measures that can be taken to implement flexible worksites, work hours, or meetings and travel options to limit exposure to unvaccinated or at-risk workers. Employers should also still evaluate if they can implement transparent shields or solid barriers to divide people so workers do not have face-to-face pathways.
- Implementing face coverings, surgical masks or other face coverings.
- Educating and training employees on COVID-19 policies and procedures including but not limited to paid time off, face coverings, how to health screen, and physical distancing in the workplace.
- Having a face covering policy for guests, customers, and visitors in areas where there is substantial or high transmission.
- Maintaining ventilation systems to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers.
- Performing routine cleaning and disinfection in the workplace.
- Recording and reporting COVID-19 deaths.
- Having anti-retaliation procedures that protect employees from COVID-19-related leave and safety measures.
- Reviewing other OSHA standards that may apply.
OSHA also identified several different types of workplaces that are considered “higher-risk” due to workplace environmental factors, include manufacturing, meat processing, high-volume retail and grocery, and agricultural-processing settings. In these settings, individuals may have more risk because of close contact, extended duration of contact, contact with limited ventilation, or other distinctive factors that may increase risk of exposure to COVID-19. In such higher-risk situations, OSHA instructs employers to evaluate and determine if the following actions can be implemented:
- Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Such 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 workers in parking areas, locker rooms, and near time clocks.
- Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
- Require unvaccinated or otherwise at-risk workers, and fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible; encourage and consider requiring customers and other visitors to do the same.
- Implement strategies (tailored to your 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, and ASHRAE Guidance for Building Operations and Industrial Settings During the COVID-19 Pandemic.
OSHA’s guidance indicating that retailers “suggest or require” unvaccinated customers/guests/visitors to wear masks should be interpreted as direction to employers to post signs such as: “For the safety of our employees and guests, we require everyone to wear a mask at this time.” Even those counties that are not at substantial or high-risk levels should evaluate whether they are surrounded by other high-risk counties and whether patrons visit from those other high-risk counties.
The guidance also addresses workplaces where workers travel in employer-provided buses and vans, and indicates that employers should limit occupancy and require outdoor ventilation (open windows and use non-recirculating vents).
Finally, OSHA emphasizes additional guidance for meat processing, manufacturing and assembly line settings, requiring employers to ensure there is adequate ventilation in the facility, maximize physical distancing, and install barriers to block face-to-face pathways.
Unless the workplace is 100% vaccinated, OSHA’s expectation in high-risk workplaces (which OSHA identifies as a “workplace with heightened risk due to workplace environmental factors”) is that masks are required for all unvaccinated, at-risk workers, regardless of transmission rates (which is still the expectation at all workplaces), and masks are required for unvaccinated workers when the workplace is in an area of substantial or high community transmission.
Regarding customer masking requirements, OSHA’s guidance states that employers should “consider requiring customers do the same” (emphasis added). Yet, the Agency could send an inspector who, in response to a complaint by an employee or member of the public about a lack of masking, views the lack of masking as a violation of the General Duty Clause and a failure by the retail employer to provide a safe workplace for employees. Is this likely in states where masking appears to be optional for everyone? Perhaps not, but employers should determine whether or not its business could be considered a “workplace with heightened risk due to workplace environmental factors” similar to those OSHA identified, and be aware of their potential risk when determining whether they will go the route of suggesting/encouraging masking of customers/guests and whether they will implement masking for fully vaccinated workers.
It is disheartening and difficult to get the proverbial “horse back in the barn” (masks on the faces) once there has been that bit of freedom in the pasture (no masks needed if fully vaccinated). This most recent step regarding masking guidance for fully vaccinated people seems to be signaling that, with the Delta variant, we may see further guidance from the CDC and the reinstatement of mask mandates regardless of vaccination status at the state level in the not-too-distant future.