Labor & Employment Developments Blog

Nearly a month after the U.S. Centers for Disease Control and Prevention recommended that fully vaccinated individuals no longer had to wear masks to combat COVID-19, the Occupational Safety and Health Administration has announced its long awaited updated guidance on protecting workers. President Biden issued an executive order in January directing OSHA to pursue a clearer standard for COVID-19. The standard announced today applies only to the health-care industry. A copy of the new rule can be found here on OSHA’s website, with a summary available here.

The new standard requires employers within the healthcare industry to develop and implement effective COVID-19 plans, involving non-managerial employees in hazard assessments and plan development. The standard provides specific requirements in a variety of areas, including patient screening and management, physical distancing/barriers, cleaning and ventilation, health screening, vaccination, training, and recordkeeping. Because of the emergency nature of this standard, by law it can only apply for the next six months. At that time, OSHA will be required to complete a permanent standard.    

Although the announced standard only applies to the health-care industry, OSHA announced updated guidance for all other industries on mitigating and preventing the spread of COVID-19 in the workplace. Under federal law, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. But in the face of a pandemic, what this responsibility requires has seldom been clear. The updated guidance makes clear that for most industries, employers no longer need to take steps to protect their workers from COVID-19 exposure in workplaces where all employees are fully vaccinated. However, it encourages employers to continue to take steps to protect unvaccinated or otherwise at-risk workers. Specifically, OSHA recommends that employers:

1. Grant paid time off for employees to get vaccinated; 
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work;
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand;
6. Suggest that unvaccinated customers, visitors, or guests wear face coverings;
7. Maintain ventilation systems;
8. Perform routine cleaning and disinfection;
9. Record and report COVID-19 infections and deaths (noting that for the next year OSHA will not enforce this recording requirement to require employers to record workers’ side effects from the vaccination);
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
11. Follow other applicable mandatory OSHA standards.

Although at times it is beginning to feel as if things are getting back to normal, employers must remain aware of their legal obligations. Should you have any questions, do not hesitate to contact a member of the Labor & Employment Practice Group.