OSHA Issues New COVID Guidance

On June 10, the Occupational Safety and Health Administration (OSHA) issued new guidance on COVID protections in the workplace. The new rules are intended to help employers not covered by OSHA’s COVID-19 Emergency Temporary Standard to find COVID exposure risks to workers who are unvaccinated and to help them take steps to prevent exposure.

Most employers are not covered by the Emergency Temporary Standard, which applies to businesses with severe COVID risk, such as healthcare businesses. Furthermore, this new “guidance is not a standard or regulation, and it creates no new legal obligations.” Compliance is voluntary, but failure to comply could lead to exposure through OSHA’s General Duty Clause which requires employers to provide employees with a safe and healthful workplace free from hazards likely to cause death or serious physical harm.

Under the new guidance, employees who are fully vaccinated need not follow mask and physical distancing mandates, unless otherwise required by federal, state, local, or tribal rules. The Centers for Disease Control still recommend face coverings and physical distancing for bus drivers.

The new guidance focuses on unvaccinated employees and what safety measures should be taken for them. The guidance also addresses “at-risk” workers, who are immunocompromised (for example, workers who are taking medications that weaken their immune systems). For unvaccinated and at-risk workers, the safety measures are much like those taken before. As the new guidance puts it, “for workers who are unvaccinated or who are otherwise at-risk, OSHA recommends implementing multiple layers of controls.”

Here are the recommendations for the unvaccinated and at-risk employees:

  • Identify opportunities to get vaccinated. 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.
  • 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 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).

These guidelines are much like the previous guidelines for all employees. The main difference is the lack of recommendations regarding barriers where physical distancing is impossible. Presumably, your workplace already has barriers installed. However, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.” On the other hand, “[e]mployers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”

Further guidelines for employers include the following list:

  1. Grant paid time off for employees to get vaccinated….Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine and to recover from any potential side effects from the vaccine.
  2. 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….Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons.
  3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
  4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
  5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand.
  6. Suggest that unvaccinated customers, visitors, or guests wear face coverings.
  7. Maintain ventilation systems.
  8. Perform routine cleaning and disinfection.
  9. Record and report COVID-19 infections and deaths under mandatory OSHA rules in 29 CFR 1904
  10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  11. Follow other applicable mandatory OSHA standards. [These include providing PPE.]

Additional recommendations apply to at-risk workers. They are that break times should be staggered so that fewer employees congregate at a given place at a given time. Also, workers departure and arrival times should be staggered to avoid congregation near time clocks and other places. This staggering can include scheduling stocking employees for later than usual, so they do not come into contact with nonstocking employees. Employers should also provide visual markings, such as signs on the floor, to mark out physical distancing. Barriers can be installed where physical distancing is impossible. Finally, employers should improve or maintain ventilation so that the virus has a harder time traveling from one employee to another. In buses or other vehicles in which employees ride, take steps to avoid mixing vaccinated employees with unvaccinated employees. Unvaccinated and at-risk employees should wear a mask while sharing space in a vehicle.

OSHA’s new rules loosen the restrictions for vaccinated employees, but unvaccinated and at-risk employees share the same sort of rules that have been in effect previously. Employers should maintain their COVID measures until all employees have been vaccinated.

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