The updated guidance now provides for vaccinated workers to mask in public areas in all workplaces located in counties with substantial or high COVID-19 community transmission. 

OSHA recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for employers in nonhealthcare settings. The updated OSHA guidance tracks the CDC’s July 27, 2021, recommendations, based upon the increased spread of the delta variant and new evidence that vaccinated persons can spread COVID-19. The updated OSHA guidance, together with the U.S. Food and Drug Administration’s August 23, 2021, approval of the first COVID-19 vaccine, may lead to increased worker vaccination mandates.

OSHA’s updated guidance is significant in several respects, including the following areas:

• The updated guidance now provides for vaccinated workers to mask in public areas in all workplaces located in counties with substantial or high COVID-19 community transmission. The vast majority of counties now meet this criteria. OSHA’s prior guidance did not provide for fully vaccinated workers to mask.
• The updated guidance now provides for asymptomatic, fully vaccinated workers in all areas to get tested within three to five 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 is obtained. Earlier OSHA guidance did not provide for these precautions following exposure.
• OSHA now suggests that employers consider requiring workers to get vaccinated or get tested for COVID-19 on a regular basis. The updated guidance includes other provisions to encourage employers to mandate vaccination.
• OSHA now plainly recommends to employees that “You should get a COVID-19 vaccine as soon as you can.”
• The updated guidance now provides for employers to either suggest or require that that all customers, visitors or guests wear face coverings in public indoor areas in counties with substantial or high COVID-19 transmission. Earlier guidance provided for suggesting that only unvaccinated third parties mask.

The updated guidance continues to provide for employers to adopt a multilayered approach to protect workers from COVID-19-related risks and describes specific steps for implementing 11 interventions:

1. Facilitating employee vaccination;
2. Instructing workers who are infected or symptomatic and unvaccinated workers having close contact with someone with COVID-19 to stay home;
3. Physical distancing in all common work areas for unvaccinated and other at-risk workers;
4. Providing workers with face coverings;
5. Employee education;
6. Masking for customers, visitors or guests;
7. Maintaining ventilation systems;
8. Performing cleaning and disinfection;
9. Recording and reporting COVID-19-related infections and deaths;
10. Implementing a process for workers to raise concerns about COVID-19-related hazards―including anonymously―and provide protections against retaliation; and
11. Following mandatory OSHA standards as applicable.

The guidance provides specific steps for implementing these interventions, such as those described in the bullet points above. Accordingly, the guidance merits careful review.

OSHA also provides additional steps employers should take to mitigate the spread of COVID-19 in workplaces where there is heightened risk due to specified workplace environmental factors, particularly in substantial or high transmission locations. Specific additional measures include and are not limited to:

• Varying break times among such employees to facilitate social distancing, or do so by providing additional restrooms and break areas;
• Staggering arrival and departure times;
• Providing visual cues for social distancing, such as signs and floor markers;
• Mandatory masking for workers whenever possible, including for fully vaccinated workers in areas of substantial or high community transmission; and
• Improving ventilation.

OSHA provides for additional precautions for other specified higher-risk workplaces including manufacturing, meat, poultry and seafood food processing, and high volume retail and grocery.

What This Means for Employers

While the guidance states that it is an “advisory,” the failure to follow the guidance may expose employers to, among other risks, OSHA citations and substantial penalties for violating the OSHA statutory general duty clause. In light of the updated guidance, an increasing number of employers may elect to require workers to get vaccinated or get tested for COVID-19 on a regular basis. Employers mandating worker vaccinations are well-advised to prepare to address the potential obligation to accommodate workers who refuse or are unable to become vaccinated based on disability or sincerely held religious beliefs, practices or observance. In addition, employers may wish to consider implementing mandatory mask requirements at all locations, particularly in light of the increasing number of counties with substantial or high COVID-19 community transmission and the continuing spread of the delta variant. Finally, the guidance may help healthcare employers address issues under the COVID-19 Emergency Temporary Standard that are not specifically addressed in that standard or the OSHA model plan.  

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Jonathan D. Wetchler, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.