On August 13, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”  The updated guidance, which does not apply to healthcare workplace settings covered by OSHA’s COVID-19 Emergency Temporary Standard, reflects recent changes to the guidance for fully vaccinated individuals published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021.  Among the updates discussed below, the most notable changes are the modified recommendations for fully vaccinated employees.  OSHA advises that employers should use the guidance to ensure they protect unvaccinated and otherwise at-risk workers and to determine any appropriate control measures to implement.

Updated Recommendations for Fully Vaccinated Employees

In OSHA’s prior COVID-19 guidance published on June 10, 2021, the agency advised that at workplaces where all employees are fully vaccinated, most employers can cease taking steps to protect their fully vaccinated employees who are not otherwise at-risk from COVID-19 exposure in the workplace.  However, the updated guidance references recent CDC guidance suggesting that fully vaccinated people who become infected with the Delta variant can be infectious and can spread the virus to others.  Consequently, OSHA now advises that employers adopt the following measures recommended by the CDC for fully vaccinated employees:

  • Fully vaccinated employees (as well as unvaccinated and otherwise at-risk employees) should wear masks in public, indoor settings in areas identified as having substantial or high community transmission. The guidance also recommends that employers suggest or require that unvaccinated customers, visitors, or guests wear masks in public, indoor settings in areas of substantial or high transmission.
  • Fully vaccinated employees may appropriately choose to wear masks in public, indoor settings regardless of community level of transmission, particularly if they are at increased risk of severe disease or have someone in their household who is at risk or not fully vaccinated.
  • Fully vaccinated employees who have a known exposure to someone with a suspected or confirmed case of 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. OSHA also advises that unvaccinated employees who have close contact with a suspected or confirmed case 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.

Additional Recommendations

OSHA also continues to recommend that employers implement multiple layers of controls (e.g. mask wearing, distancing, and increased ventilation).  In particular, OSHA advises employers to maintain physical distancing (at least six feet) in all communal work areas for unvaccinated and otherwise at-risk workers.  Additionally, OSHA recommends the installation of transparent shields or other solid barriers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet away from others.

OSHA recommends that employers facilitate employees getting vaccinated by granting paid time off for employees to get vaccinated and recover from any side effects.  OSHA also now advises employers to consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.  However, the guidance also recognizes that under federal anti-discrimination laws, employers may need to provide reasonable accommodations for any workers who are unable to get vaccinated or undergo testing due to a medical condition or who need a religious accommodation under Title VII of the Civil Rights Act of 1964.

In addition to the general precautions above that apply to all workplaces, the updated guidance expands information on specific measures for protecting workers in “higher-risk workplaces” with mixed-vaccination status workers, i.e., workplaces with fully vaccinated and unvaccinated employees.  OSHA lists the following industries with prolonged close contact with other workers and/or non-workers as higher-risk workplaces: manufacturing; meat, seafood and poultry processing; high volume retail and grocery; and agricultural processing, where there is often prolonged close contact with other workers and/or non-workers.  Employers in these industries should review the measures outlined in the guidance, especially given OSHA’s National Emphasis Program that already focuses enforcement on these industries.

Final Takeaway

Although OSHA’s updated guidance is advisory and does not create any new legal obligations, OSHA can cite an employer for violating the General Duty Clause that requires employers to keep the workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Thus, employers should familiarize themselves with the guidance and consider implementing the recommended mitigation measures where feasible.  Employers should also ensure that they comply with any different requirements under state OSHA plans, such as the emergency temporary standards that govern California employers.  Moreover, employers should monitor applicable federal and state regulations and guidelines, which will likely continue to change as the pandemic and CDC guidance evolve.  Employers with any questions or concerns should consult with experienced OSHA counsel to ensure they are satisfying all of the increased safety and health obligations and complications brought on by the pandemic.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.