Fall 2021 OSHA Update: COVID-19 Guidance for Non-Healthcare Workplaces

Last month, on August 13, 2021, the Occupational Safety and Health Administration’s (OSHA) updated its COVID-19 guidance for non-healthcare workplaces, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The updated guidance reflects recent guidance by the Centers for Disease Control and Prevention (CDC) to reduce health risks from the Delta variant, particularly in areas of the country with substantial or high community transmission. All counties in Idaho are currently considered by the CDC to be areas of high community transmission.

In the August update, OSHA strengthened its recommendations in the guidance, which remains advisory in nature, for fully vaccinated workforces.[1] However, this past week, President Biden announced mandatory vaccinations for many employers as a key part of a new six-part national strategy to address the continuing COVID-19 pandemic. The new mandatory vaccination requirement applies to private sector businesses with 100 or more workers, federal agencies, most federal contractors and subcontractors, and healthcare facilities that receive Medicare or Medicaid funding.[2] The President’s new plan directs OSHA to issue a new Emergency Temporary Standard (ETS) for mandatory vaccinations.

As a practical matter, OSHA will need to update its August 2021 guidance again, to acknowledge the new mandatory vaccination requirements for some businesses. But OSHA’s recommendations for vaccinations in the August 2021 updated guidance remain advisory in nature for businesses that do not have 100 or more workers, contract with the federal government, or receive Medicare or Medicaid funding. Also, other information in the August 2021 updated guidance remains current and in effect.

For both reasons, it is worthwhile for employers to be aware of the August 2021 changes made by OSHA to its guidance for non-healthcare workplaces. This article offers a discussion of those changes and an updated list summarizing key OSHA recommendations to address COVID-19 risks in these workplaces.[3]

 Vaccinations

For employers who are not subject to the new vaccination mandate, OSHA’s updated guidance “strongly encourages” that they give workers paid time off to get vaccinated and recover from any side effects. OSHA also urges employers to work with local public health authorities to offer vaccinations in their workplaces. (Employers who offer workplace vaccinations should consult with legal counsel.)

Additionally, for employers who are not subject to the new vaccination mandate, OSHA recommends that they adopt policies to either require all workers to get vaccinated or require unvaccinated workers to undergo regular COVID-19 testing—in addition to wearing masks and physical distancing if they remain unvaccinated.

Masks

The updated OSHA guidance recognizes that fully vaccinated people who are infected with the Delta variant can spread it to others.[4] OHSA recommends that fully vaccinated workers reduce these risks by: (1) wearing a mask in public indoor settings in areas of substantial or high transmission (as in Idaho); or (2) wearing a mask regardless of level of transmission, particularly if individuals are at risk or their household members are at increased risk of severe disease or are not fully vaccinated. OSHA also recommends universal indoor masking for all teachers, staff, students, and visitors in K-12 schools.

Responding to COVID-19 Exposures

The updated guidance reminds employers to remain vigilant about COVID-19 exposures. Employers are advised to direct all workers with COVID-19 infections or symptoms to stay home from work.

When employees are exposed to COVID-19 but do not show symptoms, OSHA now offers different recommendations (with support from CDC guidance) depending upon vaccination status:

• A worker who is not fully vaccinated should quarantine for 14 days after a known exposure to someone with suspected or confirmed
  COVID-19. COVID-19 Quarantine and Isolation | CDC.  The worker should be tested for COVID-19 immediately after being identified and, if that test result is negative, be tested again in 5–7 days after the last exposure or immediately if symptoms develop during quarantine.

• People who are fully vaccinated generally do not need to quarantine after contact with someone who has COVID-19 unless they develop symptoms. Interim Public Health Recommendations for Fully Vaccinated People | CDC. A fully vaccinated worker who has a known exposure to suspected or confirmed COVID-19 (but no symptoms) should get tested 3-5 days after the exposure and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Worksites with Higher COVID-19 Risks

The updated OSHA guidance pays extra attention to workplaces that are frequented by customers, visitors, or guests, such as retail workplaces. OSHA recommends that for protection in these workplaces, employers should suggest or even require customers, visitors, and guests to (like workers) wear face coverings in public indoor settings, especially in areas of substantial or high transmission (as in Idaho).

The updated guidance also pays extra attention to meat, poultry, and seafood processing settings, manufacturing facilities, and assembly lines. OSHA recommends ensuring adequate ventilation in these facilities, or if feasible, moving work outdoors. OSHA also recommends spacing workers at least 6 feet apart and ensuring that they do not work directly across from one another. Where barriers must be used because physical distancing cannot be maintained, the barriers should be made of a solid, impermeable material (like plastic or acrylic) that can be cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when in use.

Checklist of OSHA Recommendations

Following is an updated checklist of OSHA’s recommendations for workplace safety measures:

•  Ensure attendance policies are non-punitive and encourage workers to stay home when sick or when unvaccinated workers have been exposed to COVID-19

• Require employees who are exposed to COVID-19 to follow the COVID-19 testing protocols discussed above in the “Responding to COVID-19 Exposures” section of this article

• Use physical distancing in communal work settings—e.g., teleworking or flexible work hours to stagger shifts and reduce workers in the workplace

• Install shields or barriers when at least six feet of physical distancing cannot be maintained

• Offer all workers face coverings or surgical masks, at no cost

• Use personal protective equipment (PPE) when called for by OSHA or industry standards

• 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 or even require unvaccinated customers, visitors and guests to wear face coverings, particularly in public, indoor settings or areas of substantial or high transmission (i.e., Idaho)

• Maintain ventilation systems

• Perform routine cleaning, or disinfection for any 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

 For higher-risk workplaces where unvaccinated or at-risk employees work together closely, have prolonged closeness with co-workers, could become contaminated by co-workers who have the virus or by contaminated surfaces or objects, or work in situations with other factors that may increase risk (such as with ride-sharing or communal housing), OSHA further recommends that employers should:

• Stagger break times in high-population workplaces

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

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

• Provide visual cues (e.g., floor markings or signs) as reminders for physical distancing

• Require unvaccinated or otherwise at-risk workers to wear masks

• Require all workers to wear masks in areas of substantial or high community transmission

• Improve ventilation

• Encourage or require customers to wear masks

• In retail workplaces:

  • Promote physical distancing between unvaccinated or otherwise at-risk workers

  • Limit occupancy to allow for physical distancing

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

  • Adjust stocking activities to limit contact with unvaccinated or at-risk workers

• Limit the number of workers in a vehicle, ensure riders wear masks, and open car windows

The updated OSHA guidance is at Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov).

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 www.macmasterlaw.com/contact.

___________________

[1] The updated guidance applies to workplaces that are not covered by OSHA’s COVID-19 Emergency Temporary Standard for certain healthcare workplaces. For more information, please see The New OSHA COVID-19 Emergency Temporary Standard: It’s Not Only for Hospitals at www.macmasterlaw.com/publications.

[2] For more information about the new “Path Out of the Pandemic, President Biden’s COVID-19 Action Plan,” please see Mandatory Vaccinations and Other Workplace Changes at www.macmasterlaw.com/publications.

[3] Where any August 2021 updates conflict with any earlier June 2021 updates to the OSHA guidance, this article supersedes the article entitled Updated OSHA COVID-19 Guidance for Non-Healthcare Workplaces, published on June 23, 2021 at www.macmasterlaw.com/publications, and the outdated information in the June 2021 article should be disregarded.

[4] The updated August guidance modifies prior OSHA guidance in effect in June 2021, which freely advised that most employers did not need to take steps to protect workers from COVID-19 exposure in a workplace, or well-defined portions of a workplace, if all employees were fully vaccinated. "Fully vaccinated" means at least two weeks have passed since receiving the final dose of an FDA-approved vaccine.