The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has published updated guidance aimed at further mitigating and preventing the spread of COVID-19 in the workplace. OSHA's updated guidance tracks the Centers for Disease Control and Prevention's (CDC) July 27, 2021, mask and testing recommendations for all employees—including those already fully vaccinated.
OSHA's updated COVID-19 guidance applies to all workplaces not covered by OSHA's healthcare services Emergency Temporary Standard. Although it creates no new legal obligations for employers, it does indicate what OSHA will expect from them.
An employer that fails to comply with the updated guidance may face a citation alleging a violation of the general duty clause for failing to keep the workplace free from recognized, serious health and safety hazards. Many employers have already implemented COVID-19 safety programs and policies as they gear up towards office reopenings. Employers should therefore compare their programs and policies against OSHA's updated guidance, as well as other applicable federal, state, and local guidance and mandates, and assess whether any updates need to be made to their programs and policies.
Key Changes to OSHA COVID-19 Guidance
OSHA's updated guidance recommends all employees wear a mask in any indoor or outdoor shared settings in areas with substantial or high levels of community transmission (incorporating the CDC's COVID-19 Data Tracker found here). Vaccinated employees should get tested three to five days following a known exposure to someone suspected or confirmed to have COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
Unvaccinated employees should be tested immediately after exposure, and if they initially test negative, be tested again five to seven days after last exposure or immediately if symptoms develop during quarantine. OSHA further suggests that employers consider adopting programs and policies requiring employees to either get vaccinated or submit to regular COVID-19 testing.
Summary of Guidance for Non-Healthcare Employers1
OSHA's updated COVID-19 guidance includes recommended steps employers should take to protect their employees and prevent the spread of COVID-19:
- Facilitate employees getting vaccinated, including by granting employees paid time off to get vaccinated and recover from any side effects;
- Instruct all employees to stay home if they test positive or present symptoms of COVID-19, and also instruct unvaccinated employees to stay home if they have had close contact with someone who has tested positive;
- Implement physical distancing for unvaccinated and at-risk employees in communal work areas;
- Provide all employees with face coverings or surgical masks unless their job duties require the use of a respirator or other personal protective equipment;
- Provide employee training on the employer's COVID-19 policies and procedures in accessible formats and in languages understood by employees;
- Suggest or require unvaccinated visitors wear face coverings and that all visitors wear face coverings in public, indoor settings in areas of substantial or high transmission;
- Maintain ventilation systems, including installing MERV-13 or better air filters, and use HEPA filters in high-occupancy or limited ventilation spaces;
- Perform routine cleaning and disinfection, including CDC cleaning and disinfection recommendations within 24 hours of any suspected or confirmed COVID-19 case;
- Record and report work-related COVID-19 infections and deaths;
- Prohibit retaliation against employees voicing concerns about COVID-19-related hazards and set up an anonymous process for workers to voice such concerns; and
- Continuing to follow all other applicable OSHA standards.
Does OSHA's Updated COVID-19 Guidance Apply to State Plans?
California, Washington, Oregon, Alaska, and over a dozen other states and territories fall within the jurisdiction of their own state-specific workplace safety and health plans ("state-plan states"). State-plan states do not need to adopt the federal OSHA COVID-19 guidance if their plan is equally or more protective of employees..
However, state-plan states may nonetheless rely upon OSHA's updated guidance as a basis to support an alleged violation of the state-plan equivalent of OSHA's general duty clause or specific safety and health standards. In addition, some states have adopted emergency temporary or permanent COVID standards. Unlike this guidance, these state standards are enforceable on their own terms, and employers in jurisdictions with these regulations should familiarize themselves with the legal obligations these regulations impose.
Employers should continue to follow federal, state, and locally applicable COVID-19 rules and regulations and evaluate on an individualized basis whether implementing further safeguards based on OSHA's updated COVID-19 guidance is appropriate.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.