Updated OSHA COVID-19 Guidance for Non-Healthcare Workplaces

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance for non-healthcare workplaces. The updated guidance, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, does not impose any new legal obligations. Instead, the guidance is advisory in nature and informational in content. It applies to workplaces that are not covered by the mandated safety requirements in OSHA’s new COVID-19 Emergency Temporary Standard (ETS), which targets certain healthcare workplaces.[1]   

The updated OSHA guidance recommends COVID-19 safety measures for workers who are unvaccinated or have a heightened risk of becoming infected even though they are vaccinated, and it offers additional recommendations for workplaces that pose heightened risks for the spread of COVID-19. Key points of the updated guidance are summarized below.  

Fully Vaccinated Workforces

The updated guidance advises that most employers no longer need to take steps to protect workers from COVID-19 exposure in a workplace, or well-defined portions of a workplace, if all employees are fully vaccinated.  "Fully vaccinated" means at least two weeks have passed since receiving the final dose of an FDA-approved vaccine.

But there are some exceptions to this new leeway for vaccinated workforces.  The updated guidance does not apply to healthcare workplaces that are covered by the ETS, nor does it override mask requirements for public transportation. Also, fully vaccinated workforces remain subject to any other requirements imposed by federal, state, local, tribal or territorial laws, rules or regulations, and schools are advised to continue to follow CDC guidance.  Additionally, safety measures are recommended for vaccinated workers who remain at a higher risk of COVID-19 infection—e.g., due to weakened immune responses to vaccines.

Workforces With Unvaccinated and At-Risk Workers

The updated guidance advises employers to implement multi-layered interventions for workforces with unvaccinated or at-risk workers (regardless of vaccination).  The guidance recommends that employers:

• Grant paid time off for workers to get vaccinated

• Instruct workers to stay home in the event of a COVID-19 infection or symptoms

• Instruct unvaccinated workers to stay home in the event of close contact with someone who has tested positive for COVID-19

• Eliminate or revise attendance policies that are punitive or that encourage workers to come to work when sick or when unvaccinated workers have been exposed to COVID-19

• Install transparent shields or barriers when six feet of social distancing cannot be maintained

• Implement policies for physical distancing in communal work settings—e.g., teleworking or flexible work hours that stagger shifts to reduce the number of workers in the workplace

• Provide face coverings or surgical masks to unvaccinated or at-risk workers, at no cost to them 

• Ensure workers use personal protective equipment (PPE) when called for by OSHA standards or industry-specific guidance

• Offer PPE (e.g., a face shield) as a reasonable accommodation for a worker’s disability or when a worker is concerned about personal safety (e.g., due to a high-risk family member)

• Train workers on COVID-19 policies and procedures

• Suggest to unvaccinated customers and visitors that they wear face coverings

• Maintain adequate ventilation systems 

• Perform routine cleaning, or disinfection in the event of a confirmed or suspected COVID-19 case

• Record COVID-19 infections and report hospitalizations and deaths to OSHA

• Prohibit retaliation (e.g., for raising reasonable concerns about COVID-19 infection controls)

• Set up a hotline or offer other anonymous methods to report COVID-19 hazards

• Comply with all mandatory OSHA standards

• Higher-Risk Workplaces

The updated guidance also identifies workplace factors that pose higher risks to unvaccinated or at-risk employees, including where these employees: (1) work together closely (e.g., on assembly lines or in communal areas such as timeclock areas, break rooms, and locker/changing rooms); (2) have prolonged closeness with co-workers (e.g., 8-12 hour shifts); (3) could become contaminated by co-workers who have the virus or by contaminated surfaces or objects (e.g., tools, workstations, break rooms, locker rooms, and facility entrances); (4) share transportation (e.g., employer-provided ride-sharing or shuttles); (5) have frequent contact with each other in community settings with elevated community transmission; or (6) reside in communal housing or living quarters.

To protect unvaccinated and at-risk employees when these higher-risk factors are present, the updated guidance recommends that employers:

• Stagger break times in high-population workplaces

• Provide temporary break areas and restrooms for unvaccinated and at-risk workers

• Stagger shift schedules to avoid congregating in parking lots, locker rooms, or near time clocks

• Provide visual cues (e.g., floor markings or signs) to remind workers about physical distancing

• Improve ventilation

• Install barriers to separate unvaccinated or at-risk workers on assembly lines from others

• Limit the number of workers in one vehicle and make sure all riders wear masks

• In retail workplaces, protect these employees by:

  • Suggesting masks for unvaccinated customers and other visitors

  • Maintaining physical distancing from people who are not known to be fully vaccinated

  • Installing barriers between work stations and locations where customers stand

  • Moving electronic payment terminals/credit card readers farther away from these workers

  • Shifting their primary stocking activities to off-peak or after hours

Finally, the updated guidance also advises unvaccinated and at-risk workers to protect themselves by: (1) identifying opportunities to get vaccinated; (2) wearing face masks; (3) staying at least six feet away from other people; (4) being aware of whether rooms are properly ventilated; and (5) practicing good personal hygiene and washing hands often.

The updated guidance can be found at https://www.osha.gov/coronavirus/safework. For legal questions about OSHA’s updated guidance or applying it to your workplace, please consult with your legal counsel.  If you would like to find out about legal services offered by MacMaster Law, PLLC, please contact Emily MacMaster at macmasterlaw.com/contact.

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[1] For information about the ETS, please see The New OSHA COVID-19 Emergency Temporary Standard: It’s Not Only for Hospitals at macmasterlaw.com/publications.