In recent months, the U.S. Occupational Safety and Health Administration (OSHA) has issued several guidance documents to aid employers in addressing COVID-19 issues in the workplace. In May, we reported to you that OSHA had issued guidelines for determining whether a COVID-19 illness should be reported ("Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)"), and in June, we reported to you that OSHA had issued an emergency temporary standard limited to employers and workers in the healthcare industry ("OSHA COVID-19 Healthcare ETS Fact Sheet"). Later that month, we reported to you that OSHA had issued broader guidelines for returning employees safely to workplaces deemed by local authorities as “non-essential businesses” ("Guidance on Returning to Work"). Now, OSHA has issued guidance aimed primarily at the protection of unvaccinated workers.
On July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) issued its own new guidance ("Guidance for Implementing COVID-19 Prevention Strategies in the Context of Varying Community Transmission Levels and Vaccination Coverage"), which recommended vaccination first as the most effective means to control the spread of disease. This guidance also recommended, particularly in light of the spread of the more transmissible Delta variant, that all unvaccinated persons wear masks in public indoor settings; that fully vaccinated persons wear masks in public indoor settings in areas of substantial or high transmission; and that fully vaccinated persons consider wearing a mask in public indoor settings, regardless of transmission level, if they or someone in their household has a compromised immune system, is at increased risk for severe disease, or is
unvaccinated (including children under age 12 who are currently ineligible for vaccination). The CDC also recommended that anyone exposed to someone suspected of being infected should get tested 3-5 days after exposure and should wear a mask for 14 days or until a test comes back negative.
In response, on August 13, 2021, OSHA issued an update to "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace," which it summarized in a trade release. Similar to the CDC, OSHA now recommends that in the workplace:
- fully vaccinated workers in areas of substantial or high community transmission should wear masks in order to protect unvaccinated workers;
- fully vaccinated workers who have close contacts with people with coronavirus should wear masks for up to 14 days unless they have a negative coronavirus test at least 3-5 days after such contact; and
- for higher-risk workplaces like manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings:
a. arrival, departure and break
times be staggered;
b. mask use be increased among unvaccinated workers and vaccinated
workers in high transmission areas;
c. visual cues be placed to remind people to socially distance; and
d. where possible, ventilation be improved.
The updated guidance also includes recommendations for high-volume
retail workplaces (including increased mask use, physical distancing and limitation of contact between unvaccinated and other at-risk persons), employer provided buses and vans (including increased mask use, limiting the number of unvaccinated persons in a vehicle and opening windows). Like the CDC, OSHA continues to recommend vaccination as the most effective way to prevent the spread of disease, but the new guidance is intended to provide more protection for workers in higher-risk workplaces with mixed vaccination status workers and workers in places where there is often prolonged close contact with other workers and/or non-workers.
Employers should revisit their COVID-19 plans and processes
and update them based on the new guidance discussed above. If your company would like assistance in this matter, Calfee’s safety professionals in its Labor and Employment and Environmental practice groups are available for consultation.