In response to the surge of delta variant cases across the country, federal workplace safety officials just issued updated guidance to help employers and workers identify current COVID-19 risks for unvaccinated or otherwise at-risk workers – making many employers feel like they are in the same ol’ situation they were in just a few months ago. The Occupational Safety and Health Administration’s (OSHA’s) updated guidance, released on August 13, revises its June 2021 guidance applicable to those not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for healthcare workplaces and adheres to updated Centers for Disease Control and Prevention (CDC) coronavirus guidance issued last month. What are the top 10 takeaways employers need to know about with respect to OSHA’s most recent guidance?
OSHA’s Updated Recommendations
As most are aware by now, the CDC updated its recommendations for fully vaccinated individuals to reduce their risk of becoming infected with the delta variant and potentially spreading it to others. The CDC’s guidance addresses mask wearing in public indoor settings; choosing to wear masks regardless of the potential level of transmission (particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated); and revised testing recommendations for known exposures.
In its revised guidance, OSHA has essentially adopted analogous recommendations for employers. To follow this guidance, you should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. In light of OSHA’s recent guidance, it is clear the agency is focused at facilitating higher vaccination rates via imposing new standards on employers.
Top 10 Employer Takeaways
Here are the top 10 takeaways from OSHA’s new guidance.
At sites where unvaccinated or otherwise at-risk workers cannot physically distance, transparent shields (or other like barriers) may be considered. These types of barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets. Any openings should be placed at the bottom, made as small as possible, and the height should consider the employee’s posture while working (i.e., sitting or standing). Ventilation, fire safety, and other safety considerations should be incorporated when designing and installing barriers.
Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Workers who are outdoors may opt not to wear face coverings unless they are at risk. Regardless, employers should support employees who continue to wear a face covering, especially when working closely with others. If an employer determines PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE per the relevant OSHA PPE standards.
Employers should educate and train workers on their COVID-19 policies and procedures using accessible formats and in languages they understand. Employers should train managers on how to implement their COVID-19 policies. These policies should be communicated clearly, frequently, and using multiple methods to promote a safe and healthy workplace. OSHA suggests that communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities.
Training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, hand hygiene, and workplace policies and procedures to protect workers from COVID-19 hazards. In addition, employers should implement a means of tracking which (and when) workers receive this information.
Employers should suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, such as retail establishments. All customers, visitors, or guests should wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring individuals wear face coverings, even if no longer required by your jurisdiction.
Employers should maintain workplace ventilation systems. As COVID-19 spreads more easily indoors, improving and maintaining ventilation systems is a key engineering control. Such a maintenance program can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air (and consequently reduce the risk of transmission to unvaccinated and otherwise at-risk workers in particular). A well-maintained ventilation system is essential in any indoor workplace setting, and when working properly, ventilation is a primary control measure to limit the spread of COVID-19.
Specific recommendations can be located within the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations and Industrial Settings during the COVID-19 Pandemic. Key measures include ensuring HVAC systems are operating in accordance with the manufacturer’s specifications, conducting regularly scheduled inspections and maintenance, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible. Buildings without HVAC systems should maximize natural ventilation by opening windows or doors, when conditions allow (if that does not pose a safety risk) and consider using portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
Employers should perform routine cleaning and disinfection. This is especially important if someone who has been in the facility within 24 hours is suspected of having COVID-19 or is a confirmed COVID-19 case. In those situations, OSHA recommends following the CDC’s cleaning and disinfection recommendations.
Employers must record and report workplace COVID-19 infections and deaths: Under OSHA’s recordkeeping standard, employers are required to record work-related cases of COVID-19 illness 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). Likewise, employers must follow the requirements when reporting work-related COVID-19 fatalities and hospitalizations.
Employers should implement protections from retaliation and set up anonymous methods for workers to raise concerns about COVID-19-related hazards. Employers should ensure workers know whom to contact with questions and/or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities. This could be accomplished by using an employee hotline or other method for workers to voice concerns anonymously.
Conclusion
The guidance also reminds employers to follow all other applicable mandatory OSHA standards. These mandatory OSHA standards include requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.
The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area. So what does this mean for employers and your masking policies?
What Has Changed and Why?
The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.
Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.
What About OSHA’s Emergency Temporary Standard?
Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.
Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.
According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.
Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities.
What Should Employers Do?
The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.
If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.
If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood.
The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA).
You may now be thinking “What does that have to do with me? I pay my employees to work”. While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock. Before your internal defenses kick into high gear, let me provide a few examples of how this could occur:
Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office. To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). It is no wonder some of our focus on day-to-day compliance may have slipped.
My company’s mission is to be The Employer Advocate. Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur. Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance. We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.
The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees.
While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun. The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website. The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters.
Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach! Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.
Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.
Now that most states, the CDC, and OSHA have (or may soon) lift mask mandates for vaccinated workers, what is an employer to do about revealing an employee’s vaccination status? Under any relaxed masking guidance applicable to those who are fully vaccinated, customers, visitors, and co-workers are likely to draw their own conclusions about the vaccination status of everyone else in the workplace based upon whether or not they are wearing a mask. This addresses some of the legal and practical considerations for employers dealing with a partially vaccinated workforce and provides seven options for you to consider as you navigate this rapidly evolving area.
The Push to Unmask
Anxious to get back to normal after more than a year of mask mandates and social distancing, employers and employees are ready to do away with COVID-19 restrictions. Employees in certain industries (such as health care workers and educators) will likely continue to be required to mask up and social distance for the foreseeable future. However, other employers are developing various approaches and policies to lift masking requirements for employees (and others) who are fully vaccinated following new CDC and OSHA guidance.
Unmasking Employees Based On “Proof” of Vaccination
“Proof” of vaccination status is and will continue to be a significant consideration for employers when lifting mask mandates. Indeed, many employees are under the mistaken belief that an employer cannot ask vaccine status. However, per the guidance of the EEOC and other state agencies, you are permitted to request vaccination status. In California, local health authorities such as in Santa Clara County, have already mandated that businesses and government entities ascertain the vaccination status of all employees, independent contractors, and volunteers who are or will be working at a facility or worksite in the county.
Indeed, the inquiry may be required to determine which employees can and which employees cannot unmask. As an example, the Oregon Occupational Safety and Health Administration has already issued guidance that requires employers to “verify the vaccination status” of workers before permitting them to unmask. The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. During COVID-19 inspections, OSHA will likely require employers to show how they have documented or “verified” vaccination status where employees are permitted to work under the relaxed COVID-19 safety protocols.
In determining an employee’s vaccine status, however, you must carefully limit any vaccine-related inquiry only to vaccination status and not inquire further, as such follow-up could improperly elicit information about an employee’s medical disability or other family medical information. Given that this is likely considered medical information, such information should be kept separate and confidential. Additionally, employers subject to the CCPA in states such as California need to understand that collecting vaccine-related information triggers the CCPA notice obligation.
Navigating State Limitations on Requiring Proof of Vaccination Status
Even though some federal, state, or local agencies may require or request that employers track employee vaccine status, there is a growing move in some states to protect vaccine status as confidential, private information. States are literally all over the map when it comes to vaccine disclosure or use of so called “vaccine passports.” Some states have adopted or are considering laws that promote vaccine passports. New York, for example, launched a COVID-19 vaccine passport initiative known as the Excelsior Pass that allows users to provide proof of vaccination where required. Other states, like Hawaii, have or are considering similar passport systems that promote vaccine disclosure to assist in safe reopening of business and public access.
However, many other states have gone in the opposite direction to protect individual privacy rights. These states have acted to restrict vaccine passports, with government entities and businesses barred from requiring proof of vaccinations. For example, Florida Governor Ron DeSantis recently signed into law a statute that prohibits the use of vaccine passports by government entities or businesses, stating that “in Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Other states such as Alabama, Arizona, Idaho, Indiana, Iowa, Georgia, South Carolina, South Dakota, Texas, and Wyoming have also restricted vaccine passports or requirements.
Arkansas and Montana have taken a more aggressive approach to address individuals’ privacy concerns and limit disclosure of vaccination status. Governor Hutchinson signed into law a statute that prevents state and local government entities from requiring proof of vaccinations as a condition of employment or to access goods and services. The law provides some exceptions for state-owned medical facilities. Montana Governor Gianforte has signed into law a statute that provides even greater protections for the unvaccinated, generally prohibiting employers from requiring any of the current vaccinations.
Given the fluidity in this area, you should remain mindful of the need to monitor these developments and check with counsel before implementing any vaccine-tracking policies.
Additional Landmines if Fully Vaccinated Employees Unmask
Aside from the spate of state and local government restrictions and mandates, employers face other potential legal landmines and practical problems when tracking and/or disclosing an employee’s vaccination status. As mentioned above, you should consider the legal privacy considerations in requesting and maintaining the vaccination status of employees.
As employers move to allow fully vaccinated workers to unmask employees, there will likely be legal, privacy, and employee morale issues related to any express or perceived disclosure of employee vaccination status. Indeed, even without an explicit disclosure, others will likely be able to decipher the vaccination status of employees. While employees are choosing to voluntarily disclose their vaccination status to their co-workers, you should not adopt such a casual attitude. You should consider the ramifications of disclosure of vaccine status without employee consent or as a result of a “company policy” or practice. Such practices could potentially give rise to exposure in areas of breach of confidentiality, privacy, discrimination, retaliation, and more.
Company disclosure of vaccine status may also inadvertently expose employees with legitimate disability issues or religious objections related to the vaccine. Employee morale could be compromised if employees believe they are being pitted against each other due to their vaccine status, especially if the company is somehow involved in the disclosures. Additionally, a policy of company-wide disclosure might even boomerang, potentially discouraging employees who do not want to be ridiculed or harassed by co-workers who are opposed to the vaccination.
What Should Employers Do? 7 Options to Address a Partially Vaccinated Workforce
How to relax restrictions for those who are fully vaccinated while maintaining confidentiality and a safe workplace for all? How to balance the possible exposure and potential federal and state safety agency fines if you don’t get it right? While there are rarely clear answers, and legal liabilities remain unclear, below are some options employers have been adopting to deal with the dilemma of the partially vaccinated workforce.
Conclusion
Each of these options come with some level of risk. You should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. Also, note that every option in which some employees are masked and some are unmasked includes the risk of employee conflict or harassment issues. This risk should be evaluated and addressed up front through training, ongoing communications emphasizing the importance of mutual respect in the workplace, adoption of written policies and procedures, and effective management oversight.
In a surprise move today, CDC followed the lead of the various states that have lifted their masking and physical distancing recommendations. However, CDC’s new recommendations come with a twist. The CDC’s recommendations only apply to fully vaccinated people in non-healthcare settings. Here’s what your business should consider as it decides whether to “unmask.”
The May 13, 2021 CDC Interim Public Health Recommendations for Fully Vaccinated People states that fully vaccinated people no longer need to wear a mask or physically distance in any non-health care setting (except prisons and homeless shelters and public transportation), except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to the CDC, prevention measures (including masks and physical distancing) are still recommended for unvaccinated people.
Employers who are interested in relaxing mask requirements in the workplace should first consider the following.
Declaring that the state is “no longer in a state of emergency,” Florida Governor Ron DeSantis signed a bill on Monday, May 3rd, banning vaccine passports while issuing two executive orders immediately suspending and invalidating local government COVID-19 restrictions, including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines for your workers. Below is a summary of the implications for Florida businesses.
Vaccine Passports Banned
As the vaccine rollout progresses, businesses and employers nationwide have been wondering if a “vaccine passport” – an official document certifying that an individual has been vaccinated against COVID-19 – can lead to a path back to normalcy. A Florida law now prohibits businesses operating in Florida from implementing those measures with respect to customers. The new law does not come as a surprise to most Floridians. On April 2, Governor DeSantis signed Executive Order 21-81 prohibiting vaccine passports. This new law, however, solidifies the ban and provides more guidance for businesses.
Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business. Licensed health care providers are exempt from this provision.
The law also provides that educational institutions, including both public and private schools, cannot require students or residents to provide documentation certifying that they received the COVID-19 vaccine or have recovered from the virus.
Importantly, the law does not prohibit private businesses from requiring that their own employees show proof of vaccination or certification that they recovered from the virus. Of note, recent guidance from the Equal Employment Opportunity Commission clarifies that it is generally permissible for employers to ask employees about whether they have been vaccinated, but employers should avoid further inquiries.
Further, the new law permits covered entities to continue to use screening protocols (such as temperature checks) in accordance with state or federal law to protect public health.
Governor Eliminates Current Local Restrictions After Florida Surgeon General Discourages Masks
On April 29, Florida State Surgeon General Dr. Scott Rivkees issued a Public Health Advisory rescinding prior public health advisories. Notably, the advisory states that fully vaccinated people should no longer be advised to wear face coverings or avoid social and recreational gatherings except in “limited circumstances.” Those limited circumstances are not defined, but the advisory appears to cover masking both indoors and outdoors.
Noticeably, the Surgeon General’s advisory is less restrictive than CDC guidance. Although the CDC recently announced that fully vaccinated people can forego masks in certain situations (for example, if they are indoors with other vaccinated people, indoors with unvaccinated people from the same household, or outdoors in spaces that are not crowded), the CDC generally recommends that fully vaccinated people continue to wear masks or face coverings in other scenarios.
To follow the Surgeon General’s advisory, Governor DeSantis issued a pair of executive orders on May 3 suspending and invalidating local government COVID-19 restrictions, including mask mandates. These orders effectively eliminate all existing coronavirus-related restrictions imposed by local governments. This means that local orders requiring, among other things, masks, sanitizing, and capacity limits are no longer effective. The orders do not affect restrictions issued by school districts.
Noticeably, the governor’s orders only prohibit local governments from issuing and enforcing COVID-19 restrictions using their emergency procedures. They specifically allow local governments to enact ordinances under regular enactment procedures. Thus, it is possible that local governments will counter the governor’s orders by enacting ordinances continuing to require such measures as masking and distancing.
However, the state’s guidance does not mean that private businesses cannot – or should not – enforce their own policies. The orders only prohibit local governments from issuing and enforcing restrictions on individuals or businesses using emergency powers. Local governments may still enact such procedures using regular procedures. Businesses can still generally enforce their own measures, including mask mandates, if they choose to.
What Should Employers Do Now?
Pushing forward to a new normal, Florida employers should be aware of how to proceed. Despite the state’s guidance, you should continue to enforce safety measures.
Florida recently passed a new COVID-19 liability protection law for businesses. Although very favorable to businesses, the law requires that businesses make a “good faith effort to substantially comply with authoritative or controlling government-issued health standards” to gain its protection. If there are different sources of guidance in effect, a business may follow any of them. This means that although they are different, a business can likely be protected from liability by following either Florida or CDC guidance. However, an employer may have stronger defenses and be able to undercut possible claims earlier by following CDC guidance, which takes a more conservative approach than current Florida guidance.
Further, OSHA requires that employers maintain a workplace free of recognized hazards. COVID-19 is such a recognized hazard. By not following CDC guidance, a Florida employer may open themselves to exposure under OSHA’s General Duty Clause, even in the absence of a state mandate.
Employers should also consider the business realities of having unmasked employees. Among other things, customers and vendors may not feel comfortable entering your business if they see employees unmasked, even if they are vaccinated.
Finally, because the Surgeon General’s recommendations only apply to fully vaccinated people, your business may have an inconsistent patchwork of some employees wearing masks while others are not. This may result in a situation where different standards apply to different employees depending on their vaccination status. Employers should avoid this, as OSHA has issued guidance stating that businesses should not treat unvaccinated employees differently than vaccinated employees. Additionally, inconsistency among employees wearing masks may inadvertently reveal who is and is not vaccinated, which may be disruptive and may unintentionally single out employees who do not get the vaccine, including for medical or religious reasons.
On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers.
The Guidance, which is intended for non-healthcare employers, is not mandatory and does not have the same legal effect as an OSHA standard. Nevertheless, it provides insight into OSHA’s views and previews what the agency may include in an Emergency Temporary Standard (ETS), which the Biden administration has directed OSHA to consider and potentially implement by March 15, 2021.
OSHA’s Guidance provides all employers an important opportunity to review their COVID-19 prevention strategies. While most of the Guidance is not new, it provides a handful of new recommendations employers may want to consider adding to their current COVID-19 protocols. The new recommendations include:
1. Establish a system to communicate and provide training to all employees on the employer’s COVID-19 policies and establish an avenue for employees to report COVID-19-related concerns anonymously, without fear of retaliation. All such communications should be in languages employees understand and provided in a manner accessible to individuals with disabilities.
2. Make COVID-19 vaccines available at no cost to all eligible employees and provide information and training on the benefits and safety of vaccinations. While OSHA does not specify the information or training it suggests employers provide, the Guidance references CDC’s “Frequently Asked Questions About COVID-19 Vaccination.”
3. Don’t distinguish between workers who are vaccinated and those who are not. All vaccinated employees should continue to wear a mask, socially distance, and follow other COVID-19 protocols (e.g., exclusion from the workplace following COVID-19 exposure). This is necessary because, as OSHA explains, at this time, “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”
4. Provide all workers with face coverings (i.e., cloth face coverings and surgical masks), unless their work task requires a respirator, at no cost.
OSHA recommends that employers provide all workers with face coverings, which include cloth face coverings and surgical masks, for use in the workplace with limited exception and unless their work tasks require a respirator (such as an N95 filtering facepiece respirator) or would present a hazard. OSHA also recommends that employers consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading for employees who are deaf or have a hearing deficit. OSHA further recommends that employers require all other individuals at the workplace over the age of two, such as visitors or customers, to wear face coverings. Where employees with disabilities cannot wear a certain type of face covering, employers should discuss the possibility of providing a reasonable accommodation using an interactive process. OSHA’s Guidance on reasonable accommodations for face covering requirements dovetails with guidance on reasonable accommodations previously provided by the Equal Employment Opportunity Commission (EEOC).
OSHA has explained in previous guidance that cloth face coverings are not personal protective equipment (PPE), but can be used as recommended by CDC as a preventive measure in an employer’s COVID-19 exposure control plan. The new Guidance acknowledges that cloth face coverings can reduce exposure for the person wearing the covering in some instances.
The rest of the Guidance reviews additional practices and protocols that OSHA suggests are necessary for an effective COVID-19 prevention program. These are as follows:
1. Assign a coordinator. OSHA recommends assigning a workplace coordinator to be responsible for COVID-19 issues. The coordinator should administer the COVID-19 prevention program on the employer’s behalf.
2. Conduct a hazard assessment. It is important for employers to identify where and how workers may be exposed to COVID-19 and implement responsive COVID-19 hazard controls. As OSHA points out, it is important to consult with employees, especially those who are in the trenches, when conducting the assessment to understand the realities of the workplace.
3. Identify a combination of measures that will prevent and limit the spread of COVID-19. OSHA provides a hierarchy of controls, prioritizing engineering controls that eliminate the COVID-19 hazard entirely, followed by administrative policies and PPE to protect workers from COVID-19 hazards. OSHA lists several commonly recognized measures that employers should take and provides details to assist employers to implement these measures effectively:
a. Separate and send home infected or potentially infected people from the workplace.
The first step in any workplace safety hazard assessment is to eliminate the hazard. In the case of COVID-19, that means removing infected or potentially infected people from the workplace. We recommend that employers communicate clear expectations to employees and adopt employee and visitor screening practices consistent with state and local requirements and recommendations.
OSHA explains that most employers will follow a symptom-based strategy for identifying, separating, and sending workers home. OSHA also recognizes that there are some circumstances where “employers may consider a COVID-19 test-based strategy.”
b. Implement physical distancing in all communal work areas.
OSHA explains that the “best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person.” Keeping 6 feet of distance is generally recommended, but it is “not a guarantee of safety, especially in enclosed spaces or those with poor ventilation.” To increase physical distance, it is often important to limit the number of people in one place at any given time and increase physical space between people. OSHA recommends numerous strategies that many employers have adopted over the past 10 months, including telework, flexible work hours, staggered shifts, delivery of remote services, limiting the size of meetings, and using visible cues to encouraging distancing, to name a few.
c. Install barriers where physical distancing cannot be maintained. OSHA recommends installing transparent shields or other solid barriers at fixed workstations where workers cannot maintain 6 feet from other people.
f. Use applicable PPE to protect workers from exposure. When other measures cannot be implemented or do not protect workers fully, the Guidance concludes that current OSHA standards require that employers provide PPE as a supplement to other controls. (As discussed above, OSHA maintains that cloth face coverings are not PPE.) The standards referenced in the Guidance include OSHA’s PPE and respiratory protection standards, 29 CFR 1910, Subpart I, which require employers, at a minimum, complete a written hazard assessment to determine the need for PPE and PPE appropriate for the hazard and corresponding procedures and training. Therefore, employers are responsible for determining when and what PPE is necessary to protect workers while in the workplace. If an employer determines that an employee must wear PPE while at work and to perform a job safely, the PPE should be provided at no cost to workers and maintained in a safe condition. In application to COVID-19, CDC has addressed when PPE is necessary for job tasks that require interactions with individuals known or suspected of having COVID-19 and, depending on the task, recommends PPE consisting of surgical masks or respirators, such as the filtering facepiece respirators (e.g., N95) or personal air purifying respirators (PAPRs), with eye and face protection (i.e., face shields), protective gowns, and gloves.
4. Consider protections for workers at higher risk for severe illness. Workers with disabilities may be entitled to “reasonable accommodations” under state and federal law to protect them from the risk of contracting COVID-19. The EEOC discusses reasonable accommodations that could offer protection to an employee who is at higher personal risk from COVID-19 due to a pre-existing disability in D.1 of its “What You Should Know About COVID-19 and the ADA and Rehabilitation Act.” OSHA encourages employers to consider whether workers who have an increased personal risk of contracting a severe respiratory illness from COVID-19 (including older adults and anyone who has a serious medical condition) can do some or all of their work at home or in a less densely occupied, better ventilated workplace.
5. Establish a system for communicating effectively with workers. Employers should ask workers to report, without fear of reprisal, symptoms of COVID-19, possible COVID-19 exposures, and possible COVID-19 hazards at work. Similarly, employers should establish channels for communicating important information to employees and, of course, communicate with workers in a language they understand.
6. Educate and train workers on COVID-19 policies and procedures. OSHA recommends that, along with training workers on company policies, employers educate workers about the basic facts about COVID-19, including how it is spread. This can go a long way to helping workers understand why proper distancing, appropriate face coverings, and other measures are important to protect them. OSHA outlines a number of other topics that should be included in worker and supervisor training. OSHA recommends that the training be in plain language that workers understand (including non-English languages and American Sign Language or other accessible communication methods, if applicable).
7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. OSHA recommends attendance policies that are non-punitive.
8. Minimize the negative impact of quarantine and isolation on workers. OSHA recommends that, “when possible,” employers allow workers to telework, use paid sick leave, if available, or consider implementing paid leave. Employers that were covered under the Families First Coronavirus Response Act (FFCRA), generally employers with less than 500 employees, can still take advantage of tax credits in connection with voluntarily providing paid leave for COVID-19 related reasons through March 31, 2021.
9. Isolate and send home workers who show symptoms at work.
10. Perform enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace. Employers should follow CDC’s guidance, which includes increasing air circulation, cleaning, and disinfection using an EPA-registered disinfectant identified for use against SARS-CoV-2, the virus that causes COVID-19. Employers are required to comply with existing OSHA standards, including those related to hazard communication and PPE appropriate for exposure to cleaning chemicals.
11. Provide guidance on screening and testing. Employers should follow state and local guidance for screening and viral testing (as distinguished from antibody testing) in workplaces. Employers that adopt workplace testing programs should inform workers of testing requirements. We recommend employers review recent guidance from the CDC placing a new emphasis on informed consent prior to testing.
12. Record and report COVID-19 infections and deaths as required by existing OSHA regulations. Employers must record work-related cases of COVID-19 illness on their Form 300 Logs if certain criteria are met. An employer has an obligation to record an employee’s COVID-19 illness if: the exposure is work-related, it results in a fatality, lost workdays, job restrictions or transfers, or otherwise requires medical treatment beyond first aid. Employers must report to OSHA a COVID-19 illness if an employee is admitted to the in-patient service of a hospital within 24 hours of a workplace exposure to COVID-19 or if an employee dies within 30 days of a workplace exposure to COVID-19. In the case of a hospitalization, an employer has 24 hours to report to OSHA from when the in-patient hospitalization occurs or when the employer learns of the hospitalization if the latter occurs later. In the case of a fatality, the employer must report a work-related COVID-19 death within 8 hours of the death or within 8 hours of learning of the employee’s death, if the death occurred within 30 days of the workplace exposure. These are fact-driven, often complicated, analyses and not every employee who tests positive for COVID-19 needs to be recorded on an employer’s OSHA 300 Log or reported to OSHA, for that matter.
13. Implement protections from retaliation and set up an anonymous process for workers to report COVID-19-related hazards. OSHA explains that the Occupational Safety and Health Act prohibits employers from discriminating against an employee for raising “a reasonable concern about infection control related to COVID-19.”
14. Comply with existing OSHA standards. OSHA reminds employers that all OSHA standards that apply to protecting workers from infection, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and requirements for employees to access medical and exposure records, remain in place. As mentioned above, while there is no OSHA standard specific to COVID-19, employers still have an obligation under the General Duty Clause to “provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.”
Employers should consider the following next steps:
The year 2020 highlighted the need for all of us to be agile, adjusting and responding as our world shifted, science evolved, and best practices for responding to COVID-19 developed and changed. This year is shaping up in a similar manner.
Article courtesy of Jackson Lewis