OSHA has issued new workplace guidance. The new guidance, released August 13, supplements the earlier one discussed in our June 14 Alert which focused primarily on unvaccinated or “otherwise at-risk workers.” It also addresses fully vaccinated workers in what CDC calls “areas of substantial or high community transmission.” As we’ve indicated in previous alerts, unlike formally adopted OSHA standards (including the June 21 Temporary Emergency Standard for healthcare workers), OSHA guidance is advisory in nature and does not have the force of law. However, because all employers subject to the OSH Act are subject to its General Duty Clause, we recommend that employers follow OSHA’s COVID-19 guidance to the fullest extent possible.
1. Unvaccinated or “otherwise at-risk workers”
The new guidance adds the following information, directed at workers themselves:
- You should get a COVID-19 vaccine as soon as you can. Ask your employer about opportunities for paid leave, if necessary, to get vaccinated and recover from any side effects.
- Properly wear a face covering over your nose and mouth. Face coverings are simple barriers worn over the face, nose and chin. They work to help prevent your respiratory droplets or large particles from reaching others. Individuals are encouraged to choose higher quality masks so that they are providing a greater measure of protection to themselves as well as those around them. CDC provides general guidance on masks, including face coverings.
- If you are working outdoors, you may opt not to wear face coverings in many circumstances; however, your employer should support you in safely continuing to wear a face covering if you choose, especially if you work closely with other people.
- Unless you are fully vaccinated and not otherwise at-risk, stay far enough away from other people so that you are not breathing in particles produced by them – generally at least 6 feet (about 2 arm lengths), although this approach by itself is not a guarantee that you will avoid infection, especially in enclosed or poorly ventilated spaces. Ask your employer about possible telework and flexible schedule options at your workplace, and take advantage of such policies if possible. Perform work tasks, hold meetings, and take breaks outdoors when possible.
- Participate in any training offered by your employer/building manager to learn how rooms are ventilated effectively, encourage your employer to provide such training if it does not already exist, and notify the building manager if you see vents that are clogged, dirty, or blocked by furniture or equipment.
- Practice good personal hygiene and wash your hands often. Always cover your mouth and nose with a tissue, or the inside of your elbow, when you cough or sneeze, and do not spit. Monitor your health daily and be alert for COVID-19 symptoms (e.g., fever, cough, or shortness of breath). See CDC’s Daily Activities and Going Out and CDC’s Interim Public Health Recommendations for Fully Vaccinated People.
- Get tested regularly, especially in areas of substantial or high community transmission.
OSHA also goes into much greater detail regarding what employers need to continue to do to protect these workers. Following is a list of headings; the details can be found in the guidance which is linked above. We note that a key element of #1 is the suggestion that employers mandate vaccines or require regular testing, in addition to mask-wearing and distancing, for those who remain unvaccinated. Please also note that some of these suggestions are not really suggestions at all, but invoke existing OSHA standards. These are numbers 4, 8, 9, and 11.
- Facilitate employees getting vaccinated.
- Instruct 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.
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
- Provide workers with face coverings or surgical masks, as appropriate, unless their work task requires a respirator or other PPE. A determination that PPE is necessary to protect unvaccinated or otherwise at-risk workers from COVID-19 transmission may trigger mandatory OSHA standards, including industry-specific ones.
- Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand.
- 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.
- Maintain Ventilation Systems.
- Perform routine cleaning and disinfection. OSHA recommends following CDC’s cleaning and disinfection guidance, but there are mandatory OSHA standards regarding hazard protection from exposure to chemicals.
- Record and report COVID-19 infections and deaths. OSHA requires work-related COVID-19 cases to be recorded on OSHA’s form 300 logs, and cases involving hospitalization or death to be reported to OSHA. See 29 CFR part 1904, Subpart C.
- Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards:
- Follow other applicable mandatory OSHA standards. These include those mentioned above, plus the ETC for healthcare workers and the General Duty Clause.
Finally, the guidance includes an appendix of “Measures Appropriate for High-Risk Workplaces with Mixed-Vaccination Status Workers,” in particular in industries and situations involving prolonged contact.
2. Vaccinated workers in “areas of substantial or high community transmission”
OSHA distills the CDC guidance for vaccinated workers as follows:
- wear a mask in public indoor settings in areas of substantial or high transmission;
- choose to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
- get tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days after exposure or until a negative test result.
The most significant point is, of course, the reintroduction of masks to the workplace, even for vaccinated employees. In states with no emergency orders still in effect, this is a matter of guidance, not a mandate. Maine has a mandate for healthcare workers based on DHHS regulations. Employers may, of course, mandate masks as part of an Infectious Disease Preparedness and Response Plan, as many did until recently.
The designation of an “area of substantial or high transmission” refers to the CDC’s county-by-county COVID Data Tracker. As of this writing the states where we have offices have the following counties in the “substantial” or “high” community transmission category:
- Maine – 15 counties; only Kennebec is exempt
- New Hampshire – the entire state
- Massachusetts – the entire state
- Rhode Island – the entire state
- DC – data unavailable
Hopes that the need to continue significant workplace pandemic restrictions was at an end are proving to be premature. However, with far better population immunity, greater locational variability, slower but steady progress with vaccinations (including boosters), final FDA approval for some or all of the vaccines, parents unwilling to subject their children to another year of remote learning, and other factors that were not present a year ago, we should not be surprised if restrictions – whether by employer mandate, government guidance, or something in between – change frequently but remain overall less onerous over the next few months. It will be important to stay informed, and avoid overreaction to every piece of news, good or bad, so that you can maintain as much consistency as possible in your approach to protecting your workforce.
For questions on the latest standards and guidance, please contact Pierce Atwood employment law partner Jim Erwin, or any member of the employment practice group.