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Increasing Awareness of OSHA’s Updated COVID-19 Guidance Important for Employers

Labor & Employment William Walden, Chris Nickels, Alexis Barkis

In our June 17 alert, we wrote about OSHA's Emergency Temporary Standard (ETS) applicable to healthcare employers for occupational exposure to COVID-19. The same day of the ETS—June 10, 2021—OSHA separately updated its guidance for all industries on mitigating and preventing the spread of COVID-19 in the workplace. This guidance is not an OSHA standard or regulation, and it creates no new legal obligations. However, this update reflects OSHA's perspective on a variety of topics related to COVID-19 and likely signals how OSHA would approach issues in an enforcement matter. It therefore benefits employers to at least have a general awareness of OSHA's positions and suggestions.

OSHA cut to the chase in the opening paragraphs of the guidance, commenting that "most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure," unless otherwise required by the ETS, public transportation requirements, or federal, state, local, tribal, or territorial laws, rules, and regulations. Instead, the updates focused on protections for unvaccinated and otherwise "at-risk workers," meaning employees who have certain conditions, medications, or disabilities affecting the ability to receive the vaccine, mount a full immune response to vaccination, or wear a face covering. OSHA views at-risk workers as similar to unvaccinated individuals, regardless of the at-risk worker's vaccination status.

To that end, OSHA has recommended 10 interventions to protect unvaccinated and otherwise at-risk workers, as well as mitigate the spread of COVID-19 (with the general proviso of following OSHA's other standards as an 11th recommendation). We indicate the 10 recommendations from OSHA below in bold text, with explanations and practical insights in plain text after each item:

  1. Time off for employees to receive the vaccine. OSHA's decision to present this as the first recommendation signals its continued agency focus on encouraging COVID-19 vaccination. For many employers, this is not a new or groundbreaking recommendation, as many have already implemented programs where employees can devote job-protected leave to obtaining the vaccination or receive extra paid time off for vaccination purposes. We highlighted one of the practical questions employers face in our April 28, 2021 webinar on COVID-19 Vaccination and Management Issues. Namely, employers face the practical question of how much leave to grant an employee who experiences extended side effects from the vaccine. As discussed more below, OSHA recommends instructing an employee with symptoms of COVID-19 to stay home. This could mean an extended period of absence for an employee dealing with side effects, and employers will want to determine proactively how to address the situation from a leave management perspective. Also, employers should keep in mind that businesses with fewer than 500 employees may have the opportunity to take advantage of tax credits under the American Rescue Plan for providing paid time off for employees to obtain vaccinations or to recover from side effects following vaccination.

  1. Instruct workers to stay home if they are infected with the COVID-19 virus, show symptoms of the COVID-19 virus, or are unvaccinated and have close contact with someone testing positive for COVID-19. Similar to the first recommendation, many employers will find this second recommendation largely uncontroversial. As a practical matter, the personnel having these conversations with employees will need training on what questions they can ask about symptoms or close contact and what to do with that information once received to avoid compliance issues under the Americans with Disabilities Act. The Equal Employment Opportunity Commission's Technical Assistance on the ADA and COVID-19 authorizes employers to ask an employee calling in sick if he or she is experiencing symptoms of the virus, such as "fever, chills, cough, shortness of breath, or sore throat." When asking these questions to employees entering the workplace, employers may ask whether the employee is experiencing the foregoing symptoms, as well symptoms identified by the CDC or other public health authorities as associated with COVID-19 (the EEOC gives the additional examples of "nausea, diarrhea, and vomiting"). Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers should also keep in mind, that when asking about close contact, to stop short of asking whether the employee's family members have COVID-19 or symptoms associated with COVID-19, as the Genetic Information Nondiscrimination Act (GINA) prohibits asking employees medical questions about family members. Employers can stay within the confines of GINA by limiting the question to whether the employee had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. As a final note on this recommendation, the tax credits available under the American Rescue Plan are also available for eligible employers that pay sick and family leave for qualified leave from April 1, 2021 through September 30, 2021.

  1. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal areas. OSHA emphasizes that although requiring employees to keep 6-feet of distance can reduce the risk of contracting COVID-19, it is not a guarantee of safety, especially in enclosed or poorly ventilated areas. The implication of this recommendation is that employers should go beyond merely advising employees to socially distance and instead proactively limit the number of unvaccinated or otherwise at-risk workers in one place at any given time. The practical challenge with this recommendation is that an employer might not know which employees are unvaccinated (if the employer chose not to inquire) or who is at-risk, and therefore this becomes an exercise in restricting the number of people who can congregate in communal workspaces generally. This could become difficult for an employer attempting to phase back into requiring all employees to return to the physical environment, and who is not necessarily in a position to install transparent shields or barriers between employees (as OSHA recommends). Rather than segregate employees who are vaccinated from those who are unvaccinated (which could potentially raise other legal issues and also does not address otherwise at-risk employees), it remains a best practice to take a look at communal workspaces to determine the capacity of those areas with employees maintaining 6-feet of distance. The employer can then enact guidelines on the number of people it wants to occupy those areas at any one time.

  1. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. OSHA reiterates that unvaccinated workers need not wear face coverings if outdoors, unless they are at-risk or otherwise required by applicable federal, state, or local requirements. If an employer determines that PPE is also necessary to protect unvaccinated and otherwise at-risk workers, that PPE must be in accordance with relevant mandatory OSHA standards. If an employer has decided to provide masks to employees, and the workplace has deaf or hard of hearing employees, OSHA encourages employers to consider clear face coverings to facilitate lip reading. Employers may need to provide reasonable accommodations for those individuals who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation.

  1. Educate and train workers on your COVID-19 policies and procedures using accessible formats in language they understand. In this relatively straightforward recommendation, OSHA encourages employers to communicate COVID-19 policies and procedures in plain language, non-English languages, the American Sign Language, and other accessible communication methods. As a general point of reference, OSHA suggests that trainings cover: (1) basic facts about COVID-19 (such as how the virus spreads and the importance of physical distancing, ventilation, vaccination, face coverings, and hand hygiene); and (2) workplace policies and procedures implemented to protect from COVID-19 hazards. Employers should consider whether to include contractors and other individuals on site in some or all of these communications.

  1. Suggest that unvaccinated customers, visitors, or guests wear face coverings. OSHA makes this recommendation at a time when many state governments have lifted mask mandates for the general public. This means while OSHA recommends encouraging face coverings, some customers, visitors, and guests might bristle at the notion of still having to wear a mask. For employers who only want to encourage (rather than mandate) that customers/guests wear masks, a middle ground approach that also adopts OSHA's recommendation is to post a notice in the public space that encourages face coverings (for individuals over the age of two) and states that the coverings are encouraged for the protection and safety of workers. Employers contemplating whether to encourage customers, visitors, or guests to wear face coverings, should consider that making no statement on this topic at all could be viewed by OSHA as not adequately protecting unvaccinated or at-risk employees.

  1. Maintain Ventilation Systems. As employers continue to invite workforces back into physical spaces, the practice of consulting with your contractor about the status of ventilation systems has become something to consider, given the risk of virus transmission from viral particles in indoor air. (For more information on the topic, see the CDC's guidance here on measures to improve ventilation). Although this OSHA recommendation does not require ventilation inspection, nor does OSHA cite to its Indoor Air Quality (IAQ) standard in the recommendation, the standard could become triggered with particularly dilapidated ventilation equipment or dysfunctional equipment that is inept at cycling air in an indoor environment. Consider having a ventilation system wellness check to avoid having this issue go undetected.

  1. Perform routine cleaning and disinfection. OSHA recommends following the CDC's cleaning and disinfection protocols if someone in the work area within the past 24 hours is suspected of having or confirmed of having COVID-19. Employers should remain mindful, when using certain chemicals for cleaning, of the mandatory OSHA standards for hazard communication (HCS) and PPE to protect exposure to cleaning chemicals.

  1. Record and report COVID-19 infections and deaths. We wrote about this in our COVID-19 Recording and Reporting Requirements article in December 2020. In short, OSHA’s mandatory rules require employers to record work-related COVID-19 illness on OSHA’s Form 300 logs if: (1) the case is a confirmed case of COVID-19 illness; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria. Additionally, employers must follow OSHA’s requirements when reporting COVID-19 fatalities and hospitalizations to OSHA. Through May 2022, OSHA will not enforce its recording requirements for side effects from the COVID-19 vaccination.

  1. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards. As part of trainings on COVID-19 policies and procedures, employers should continue to emphasize the prohibition against discriminating against employees for raising a reasonable concern about infection control related to COVID-19 and for providing and wearing their own PPE. Likewise, training materials should express the employer's commitment to a safe and healthful work environment, and ensure that workers know whom to contact with any questions or concerns (whether anonymously or not).

It is imperative for employers to stay apprised of OSHA’s guidance relating to COVID-19 and the risks present to workers as employers continue to move towards pre-pandemic, in-person working conditions.

For more information on any of OSHA's COVID-19 guidance, please contact your Quarles & Brady attorney or: