On August 13, 2021, OSHA issued updated guidance to combat the spread of COVID-19 in the workplace.  This guidance is significant in that it now recommends employers require face coverings for even vaccinated employees for indoor, public settings in areas of substantial or high transmission of the disease.  The guidance is consistent with the recently issued CDC guidance that issued similar recommendations for the public.

Under the OSHA Act, an employer is required to provide a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.  In support of this, OSHA has issued guidance to assist employers in protecting its workers from COVID-19.  In its most recent Interim Guidance, OSHA stated that fully vaccinated individuals might not be required to take all of the precautions required by unvaccinated individuals (such as wearing face coverings).  However, due to the surge of new infections related to the Delta variant, and the preliminary studies suggesting that even fully vaccinated individuals can potentially spread the disease, it has now reversed those recommendations. 

The new guidance begins by reiterating that “vaccination is the most effective way to protect against severe illness or death from COVID-19.”  It encourages employers to work with local public health authorities to provide vaccinations for unvaccinated workers in its workplace.  It also recommends that employers allow for paid time off for workers to use while away from work to receive a vaccine, and to consider policies that either require workers to become vaccinated or to undergo regular COVID-19 testing.

The guidance thereafter includes a list of specific recommendations for employers, which include the following: 

• Facilitate employees getting vaccinated; 
• Instruct (1) any workers who are infected, (2) any unvaccinated worker who has had close contact with someone who has tested positive for COVID-19, and (3) any worker with COVID-19 symptoms, to stay home from work;
• Implement physical distancing in all communal areas for unvaccinated individuals and workers who are at-risk;
• Provide all workers with face coverings or surgical masks, unless their work requires use of a respirator;
• Train workers on the employer’s COVID-19 policies and prevention plans;
• Suggest or require that unvaccinated customers/visitors wear face coverings generally, and that all customer/visitors wear face coverings in public, indoor settings in areas of substantial or high transmission;
• Maintain ventilation systems;
• Perform routine cleaning and disinfection;
• Record and report COVID-19 infections and deaths;
• Protect workers from retaliation for voicing concerns about COVID-19; and,
• Follow all other applicable mandatory OSHA standards.

The full guidance may be found at: https://www.osha.gov/coronavirus/safework.  Please note that this guidance contains only recommendations; not mandatory standards (although OSHA has previously issued a mandatory standard for the healthcare industry - See OSHA COVID-19 Emergency Temporary Standard for Healthcare).  Nevertheless, employers should review this new guidance in conjunction with their current COVID-19 prevention plans in order to ensure that they are complying with their general duty to protect the health and safety of their employees.  As the vast majority of the country can now be classified as an area of substantial or high transmission, this may mean a return to face coverings for most workers in most workplaces. 

If you have any questions regarding the updated OSHA guidance or on potentially altering your own workplace prevention plan accordingly, please contact Ryan Murphy, Esq. in our Employment Law Group at 1-888-488-2638 or email at Employmentlaw@c-wlaw.com.