July 12, 2021

The Latest from OSHA on Mitigating and Preventing the Spread of COVID-19 at Work

On the tails of updated guidance from other agencies, the U.S. Department of Labor Occupational Safety and Health Administration ("OSHA") released new pandemic-related guidance last month. This guidance was issued on June 10, 2021 and focuses on protections for unvaccinated and at-risk workers and encouraging COVID-19 vaccination.

Here's what employers should know:

  1. OSHA Reiterates CDC's Interim Recommendations for Fully Vaccinated People.
    Based on the U.S. CDC's Interim Public Health Recommendations for Fully Vaccinated people, which was issued on May 28, 2021, OSHA states 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 to do so by federal, state, local, or other applicable laws, rules, or regulations). "At-Risk" workers includes workers who have had transplant surgery or use immune-weakening medications.

    CDC advised in its updated guidance that most fully vaccinated people can resume activities without wearing a mask or physically distancing, except where they are required to do so by federal, state, and local laws and regulations or rules imposed by businesses and workplaces. The exception is that some additional protections may be required for people who are fully vaccinated but still at-risk due to immunocompromising conditions. Further, CDC continues to recommend precautions for workers in certain transportation settings.
     
  2. Many Healthcare Workplaces Will Be Covered by the Mandatory OSHA COVID-19 Emergency Temporary Standard.
    The June 10 guidance addresses workplaces not subject to the Mandatory OSHA COVID-19 Emergency Temporary Standard. This Emergency Temporary Standard (“ETS”) became effective on June 21, 2021 and applies to all settings where employees provide healthcare services or healthcare support services subject to some exceptions.  Unlike the new ETS, the June 10 guidance is not a standard or regulation and does not create new legal obligations.  Rather, the guidance contains recommendations that are advisory in nature and intended to assist employers in recognizing hazards in the workplace and identifying means to abate them.
     
  3. OSHA Distinguishes Between Workplaces Where All Employees Are Vaccinated and Workplaces Where There Are Unvaccinated or At-Risk Workers.
    Except for workplaces covered by the above-described mandatory ETS and mask requirements that apply in the public transportation industry, OSHA states that most employers no longer need to take steps to protect workers from COVID-19 exposure where all workers are fully vaccinated. Steps should be taken, however, to protect unvaccinated or otherwise at-risk workers.

    In workplaces where there are unvaccinated workers or workers who are otherwise at-risk, OSHA recommends that employers implement “multi-layered interventions” to protect those workers and mitigate the spread of COVID-19.  Suggested interventions include the following:
     
  • Grant paid time off for employees to get vaccinated. Keep in mind that some businesses may be eligible for tax credits if they provide paid time off for employees who decide to receive the vaccine and to recover from potential side effects.
  • Instruct workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms to stay home from work. Such absences should be encouraged and non-punitive.  Policies that encourage workers to show up when they are sick or after they have been exposed (if unvaccinated) should be eliminated or revised.  Some businesses may be eligible for refundable tax credits if they provide time off for sick and family leave due to COVID-19.
  • Implement physical distancing for unvaccinated or otherwise at-risk personnel in all communal work areas. Pre-vaccine approaches for minimizing contact between employees can be used to protect unvaccinated or otherwise at-risk workers.  Examples include administrative or engineering controls such as barriers to eliminate face-to-face pathways between individuals, modified workspaces to promote physical distancing, telework or other flexible work policies, staggered or rotating shifts, and video or telephone conferencing in lieu of in-person meetings.
  • Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks unless their work tasks require a respirator or other PPE.OSHA states that face coverings should be provided at no cost to unvaccinated and at-risk workers.  Unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk.  All personnel should be supported in continuing to use face coverings if they choose to do so.  Keep in mind that under anti-discrimination laws, employers may need to provide reasonable accommodations for any worker who is unable to wear a mask or has difficulty with a certain type of face covering due to disability or religion.
  • Educate and train workers on COVID-19 policies and proceduresEnsure that managers are familiar with COVID-19 procedures and that communications regarding policies and trainings are in an accessible format and a language that all employees can understand.  Trainings should include: (1) basic facts about COVID-19, how it is spread, and the importance of physical distancing, ventilation, vaccination, use of face coverings, and hand hygiene; and (2) workplace policies and procedures implemented to protect workers from COVID-19.
  • Suggest that unvaccinated customers, visitors, and guests wear face coveringsThis is especially important in public-facing workplaces such as retail establishments if there are unvaccinated or otherwise at-risk workers who are likely to interact with customers, visitors, or guests.   OSHA recommends posting notices even if masking is no longer required in the workplace’s jurisdiction.
  • Maintain ventilation systems. Review CDC and OSHA guidance on measures that can be implemented to improve ventilation.
  • Perform routine cleaning and disinfection. If someone has been in the workplace and is suspected of having or confirmed to have COVID-19, follow CDC cleaning and disinfection recommendations.
  • Record and report COVID-19 infections and deaths. Under the mandatory OSHA rules codified in 29 C.F.R. 1904, employers must record work-related cases of COVID-19 illness in certain circumstances.  OSHA will not enforce this standard to require employers to record worker side effects from COVID-19 vaccination through May 2022 in an effort to avoid discouraging or disincentivizing employers’ vaccination efforts.
  • Implement protections from retaliation and set up a process for workers to anonymously voice concerns about COVID-19-related hazards. Remember that employees who raise concerns about COVID-19 are protected from discharge and discrimination under Section 11(c)  of the OSH Act.

OSHA's June 10 guidance also contains an appendix describing additional measures to implement in higher-risk workplaces with mixed-vaccination status workers. The complete updated guidance can be reviewed here. The bottom line is that while restrictions are loosening and COVID-19 cases are dropping, employers should not forget about the importance of continuing to evaluate hazards in the workplace and selecting multi-layered interventions to address them.

Firm Highlights

News

Fifteen Preti Flaherty Attorneys Selected as Chambers USA Leaders in Their Field

Fifteen Preti Flaherty attorneys and five practice groups have been selected for inclusion in the 2021 Chambers USA Guide to America's Leading Lawyers for Business , the highly regarded directory of leading attorneys and...

Publication

New COBRA Premium Subsidies Take Effect April 1, 2021

The recently enacted American Rescue Plan Act of 2021 (ARPA) makes temporary but significant changes to Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) coverage rules. They provide: A 100% subsidy for COBRA premiums...

Publication

Answering Employer COVID-19 Vaccination Questions

As COVID-19 vaccines become more readily available, employers are faced with big questions. Can we mandate vaccines for employees ? How do we manage a return to work ? Preti Flaherty's Peter Callaghan breaks...

Publication

How to comply with Maine’s new paid leave law

Fittingly, “Vacation Land” is among a small contingent of states that have a paid leave law on the books.  Maine, however, is somewhat unique in that the paid leave afforded under the new law...

Publication

Court Upholds Maine Employers' Discretion Not to Pay for Unused Vacation Time

In January, the First Circuit issued an opinion upholding a lower court's decision that rejected a former employee's attempt to get paid for unused vacation time following his resignation from employment.  See White v...

Publication

What Owners Need to Know About Cannabis in the Workplace

Preti Flaherty attorney Kristin Collins spoke with Fast Forward Maine on the impact of legal recreational and adult use cannabis in Maine, including how will it effect hiring processes, health insurance, and government contracts...

Publication

Six Take-Aways from EEOC’s Updated COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission ("EEOC") published guidance in December 2020 advising how EEO laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination...