On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The guidance was originally released on January 29, 2021, and was updated once previously on June 10, 2021. The new OSHA guidance follows the U.S. Centers for Disease Control and Prevention’s (CDC) recent update to the “Interim Public Health Recommendations for Fully Vaccinated People,” which encourages fully-vaccinated people to wear masks in all “public indoor settings” in areas of “high” and “substantial” COVID-19 transmission. The OSHA guidance, as amended, in large part adopts the CDC’s updated guidance.

Highlighting the virus’s ability to spread rapidly particularly in indoor areas and areas with poor ventilation, and citing preliminary evidence that even fully vaccinated people who become infected with the Delta variant of COVID-19 can be infectious and can spread the virus to others, OSHA emphasizes the importance of implementing “multi-layered controls,” or mitigation procedures, tailored to each workplace. The OSHA recommendations are “advisory in nature and informational in content,” with a stated intention of assisting employers in providing safe workplaces free from hazards causing or likely to cause death or serious physical harm. A summary of the updated employer guidance is enumerated below:

1. Encourage and facilitate employee vaccinations. OSHA states that employers should not only encourage vaccination, but consider working with local health authorities to provide vaccinations at work. Further, OSHA recommends providing employees with paid time off for time spent getting vaccinated and recovering from any side effects. OSHA notes that businesses with fewer than 500 employees may be eligible for tax credits for providing paid time for these reasons, until September 30, 2021. Last, OSHA recommends that employers consider implementing policies that “require workers to get vaccinated or to undergo regular COVID-19 testing - in addition to mask wearing and physical distancing - if unvaccinated.” This is OSHA’s strongest statement to date on the topic of employee vaccination.
2. Instruct sick or exposed workers to stay home from work. Employers should tell any worker who is (a) currently infected with COVID-19, (b) exhibiting symptoms of COVID-19, or (c) unvaccinated and had a close contact with someone who tested positive for COVID-19, not to come to work. Echoing CDC recommendations, OSHA further advises that: fully vaccinated individuals who are knowingly exposed to someone with suspected or confirmed COVID-19 should get tested 3-5 days after exposure and should wear a mask in “public indoor settings” for 14 days or until they receive a negative test result; and individuals who are not fully vaccinated should be tested immediately after being identified, and, if negative, tested again in 5-7 days after last exposure or immediately if symptoms develop during quarantine. OSHA recommended that policies related to these absences be made non-punitive.
3. Adopt physical distancing practices in communal work areas. OSHA cautions that although physical distancing “is not a guarantee of safety, especially in enclosed or poorly ventilated spaces[,]” employers can help protect unvaccinated or otherwise at risk workers by keeping at least six feet of distance between workers to limit the virus’s spread. Employers may also choose to limit the number of unvaccinated or at-risk workers in one place at any given time, by implementing flexible worksites (teleworking) or work hours (rotating or staggering shifts); delivering services remotely (via phone or video); or implementing flexible meeting and travel options. Barriers may also be installed in workstations where at-risk workers cannot maintain six feet of distance.
4. Provide workers with face coverings or other PPE. OSHA states that on top of unvaccinated and otherwise at-risk workers, the CDC recommends fully vaccinated people also wear masks in “public indoor settings” in areas of substantial or high transmission and notes that fully vaccinated people may choose to wear masks in public indoor settings regardless of community level of transmission. Face coverings should be made available to workers who request them at no cost.
5. Educate and train workers on COVID-19 policies and procedures. Trainings should be provided/conducted in accessible formats and in languages that workers understand.
6. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings. OSHA further recommends implementing policies that suggesting or requiring customers, visitors, and guests (regardless of vaccination status) to wear face coverings in public indoor settings in areas of substantial or high transmission, even in the absence of an active “mask mandate” from the applicable state or local government.
7. Maintain ventilation systems. Finding improved ventilation to assist with reducing concentration of viral particles in indoor air, OSHA recommends ensuring heating, ventilation, and air conditioning systems are all functioning in accordance with manufacturer instructions and design specifications. To the extent feasible, employers should further try to maximize the amount of outside air supplied to the workplace.
8. Perform routine cleaning and disinfection. Where there has been a suspected or known exposure to COVID-19 within the last 24 hours, employers should clean facilities in accordance with the CDC cleaning and disinfection recommendations.
9. Record and report COVID-19 infections and deaths. As set forth in previously released OSHA rules, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if certain criteria are met.
10. Implement protections from retaliation. Employees with questions or concerns about workplace safety and health must be protected against retaliation for raising workplace safety and health concerns. OSHA recommends setting up a system by which employees may anonymously voice concerns about COVID-19-related hazards.
11. Follow other applicable mandatory OSHA standards. OSHA has previously set forth mandatory standards on PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and employee access to medical and exposure records. Further, covered healthcare workplaces must follow the mandatory OSHA COVID-19 Emergency Temporary Standard, which was published on June 21, 2021.

While this guidance does not place new legal requirements on employers, businesses are wise to take note of its suggestions on how to comply with OSHA’s mandates on providing employees with a safe and healthy workplace free from recognized hazards.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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