OSHA Modifies Workplace Safety Guidance Amidst a Nationwide COVID-19 Surge

Legal Bulletin
Only months after issuing guidance excusing most employers (outside of the healthcare and transportation industries) from taking steps to protect their workforce from COVID-19 exposure, the Department of Labor’s (“DOL”) Occupational Health and Safety Administration (“OSHA”) seemingly backtracked. Based on increased risks associated with the Delta variant of the virus and updated direction from the Centers For Disease Control and Prevention (“CDC”), OSHA updated its prior COVID-19 safety guidelines on August 13, 2021 (“OSHA’s Update”). We address what OSHA’s Update provides; its legal/regulatory impact; and its impact on employers generally.

What OSHA’s Update Provides
OSHA’s Update discusses how employers should engage with workers who are either: (1) unvaccinated or otherwise at risk (e.g., immunocompromised), or (2) vaccinated but located in areas with substantial or high virus transmission rates. To this end, OSHA offered the following suggestions for employers:

• Assist workers’ efforts to become vaccinated by working with local health officials to provide vaccines in the workplace, and by providing paid time off for vaccine appointments and for associated recovery from any vaccine side effects;
• Instruct workers to stay home from work if they test positive for COVID-19, or if they have COVID-19 symptoms, or if they are unvaccinated and have had close contact with someone who tested positive for COVID-19;
• Require physical/social distancing in all communal work areas for unvaccinated and otherwise at risk employees;
• Provide employees with face coverings or surgical masks, as appropriate, unless their work requires a respirator or other type of PPE;
• Educate and train workers on the employer’s COVID-19 policies and procedures using accessible formats, and in language workers 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;
• Record and report COVID-19 infections and deaths;
• Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
• Follow other applicable mandatory standards.

OSHA’s Update also suggests “best practices” for employers that have “higher risk workplaces” (i.e., such as those in manufacturing; meat, seafood, and poultry processing; high volume retail and grocery; and agricultural processing industries) or those workplaces in areas with high COVID-19 transmission rates. Some suggested best practices include staggering break, arrival, and departure times to avoid having groups of employees congregating; visual cues (such as floor markings and signs) to remind employees to physically distance; and, requesting that customers wear masks in work places in which there are a high volume of customers.

What’s the Impact of OSHA’s Update?
OSHA’s Update is neither an enforceable regulation nor a new legal obligation. Instead, OSHA’s Update is intended to be analogous to and harmonious with the CDC’s recent updated guidance. The CDC’s recent guidance recommended that:

• All individuals wear masks inside public settings in areas with high COVID-19 infection rates;
• Individuals who are at risk or have someone in their household who is at increased risk of severe disease, or who are not vaccinated, wear masks regardless of level of transmission; and
• Individuals who are exposed to COVID-19 get tested within three to five days and wear a mask in public indoor settings for fourteen days after exposure or until receiving a negative result.

Moreover, OSHA’s Update does not alter the DOL’s prior analysis finding employers can mandate vaccines for employees (so long as they also comply with anti-discrimination and other laws). In fact, in the OSHA Update, the agency “emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19” and explicitly “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.”

What OSHA’s Update Means for Employers
COVID 19’s Delta variant (and future expected variants) undoubtedly has and will affect workplace safety. This “new normal” will likely involve evolving workplace strategies in favor of virus mitigation to protect workers. While employers must comply with legal requirements (both those requiring virus mitigation strategies and those prohibiting them), we recognize the operational and morale difficulties arising from implementing “recommended” COVID-19 guidance. These difficulties are complicated by serious considerations like varying vaccinated workforce populations, high positivity rate states, high customer/client interactions, different state and local laws, and even high-risk industries requiring additional protections. Prudent employers should consider guidance as a whole (whether from federal, state and/or local governments) and their own operations before reacting to any particular update. Even when virus positivity rates improve, employers should still weigh the cost of changing virus mitigation strategies together with the likelihood of confusing the workforce with constant policy changes.

If you have any questions regarding your organization’s obligations or rights to go beyond recommended guidance, please reach out to the Lawrence & Bundy attorneys with whom you work.