On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued updated guidance on mitigating and preventing the spread of COVID-19 in all workplaces. Though employers in all industries have been waiting for months for OSHA’s expected issuance of Emergency Temporary Standards (ETS), OSHA only issued an ETS applicable to healthcare workers, effectively ending the likelihood of COVID-19 emergency standards for other business sectors.
The updated guidance, which largely aligns with current CDC guidance, focuses on encouraging COVID-19 vaccination and protecting unvaccinated and otherwise at-risk workers. The guidance states that except for workplace settings covered by OSHA’s ETS (for healthcare settings) and mask requirements for public transportation, “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. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”
OSHA recommends employers do that by engaging with workers and their representatives to “determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19,” including measures such as:
- Granting paid time off for employees to get vaccinated
- Instructing workers infected with COVID-19 or who have symptoms (or unvaccinated employees who have had close contact with an infected person) to stay home
- Implementing physical distancing for unvaccinated and other at-risk workers in communal areas
- Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks (unless their work task requires a respirator or other PPE)
The guidance is advisory in nature, but does clearly reference mandatory safety and health standards throughout. Even though the guidance describes itself as voluntary, employers may wish to heed the guidance to avoid claims that they have failed to provide a safe workplace, in violation of the Occupational Safety and Health Act’s General Duty clause, Section 5(a)(1) (which requires employers to provide workers with a safe and healthful workplace).
For help navigating OSHA’s updated guidance and your other employment needs, contact your Baker McKenzie employment attorney.