As recently reported, the recent announcement from the CDC that fully vaccinated people no longer need to wear a mask or physically distance in any non-healthcare setting was a relief for all Americans. However, the CDC announcement offered no specific guidance for employers in need of guidance to manage their workplaces. Since the CDC provides guidance to the general public, and does not regulate our workplaces, employers have awaited specific guidance from OSHA that was announced last week.

Generally, under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. OSHA’s  guidance is intended to provide recommendations to assist employers with compliance.

On June 10, 2021, OSHA updated its January  2021 guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The take-home from the new guidance is that “most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. [The new] guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces). Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.” (OSHA also published an emergency temporary standard for U.S. healthcare employers requiring them to take specific steps to protect healthcare workers from COVID-19 in the workplace). 

OSHA recommends employers implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Grant paid time off for employees to get vaccinated.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work. Remember that businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons.
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers). Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites,  flexible work hours, etc. At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people.
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.
5. Educate and train workers, especially supervisors, on  COVID-19 policies and procedures using accessible formats and in language they understand. 
6. Suggest that unvaccinated customers, visitors, or guests wear face coverings.
7. Maintain Ventilation Systems. 
8. Cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards for hazard communication and PPE appropriate for exposure to cleaning chemicals.
9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules, employers are responsible for recording work-related cases of COVID-19 on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Employers should also report outbreaks to health departments as required and support their contact tracing efforts.
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards. Follow other applicable mandatory OSHA standards: All of OSHA’s standards that apply to protecting workers from infection remain in place.

OSHA also recommends employers take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk, such as assembly lines, occupations that require employees to share vehicles, etc. To do so, employers should analyze the type of close contact and duration of contact of its unvaccinated or at-risk employees.

What does this mean for employers? Employers will be faced with the challenge of identifying those employees who are unvaccinated to continue providing protection to  them, and other at risk employees. While doing so, employers will need to comply with other state and federal laws, specifically, Title VII and ADA.

For assistance implementing COVID-19 protocols, contact York Bowman Law, LLC.