The US Department of Labor’s Occupational Safety and Health (OSHA) has released updated guidance aimed at further containing and preventing the spread of COVID-19 in the workplace. The updated guidelines from OSHA follow the mask and test recommendations of the Centers for Disease Control and Prevention (CDC) from July 27, 2021 for all employees – including those already fully vaccinated.
OSHA’s updated COVID-19 guidelines apply to all workplaces not covered by OSHA’s Temporary Emergency Health Services. While it does not create any new legal obligations for employers, it does show what OSHA expects of them.
An employer who does not comply with the updated guidelines can face a lawsuit for breach of the general mandatory clause for failing to keep the workplace free of recognized, serious health and safety hazards. Many employers have already put in place COVID-19 security programs and policies in preparation for office reopening. Employers should therefore compare their programs and guidelines with updated guidelines from OSHA and other applicable state, state, and local guidelines and regulations and assess whether their programs and guidelines need updating.
Important changes to the OSHA COVID-19 guidance
OSHA’s updated guidance recommends that all employees wear a mask (including the CDC’s COVID-19 data tracker found here) in all indoor or outdoor shared areas in areas with significant or high community coverage. Vaccinated employees should undergo testing three to five days after known exposure to someone with suspected or confirmed COVID-19 infection and wear a mask in public indoor spaces for 14 days or until they get a negative test result.
Unvaccinated workers should be tested immediately after exposure and, if initially tested negative, five to seven days after the last exposure, or immediately if symptoms develop during quarantine. OSHA also suggests that employers consider adopting programs and policies requiring their employees to either get vaccinated or have regular COVID-19 tests.
Summary of guidelines for non-healthcare employers1
OSHA’s updated COVID-19 guidance document contains recommended steps employers should take to protect their employees and prevent the spread of COVID-19:
- Facilitating employee vaccination, including providing paid time off for vaccination and recovery from side effects;
- Instruct all employees to stay home if they test positive or have 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 vulnerable employees in community work areas;
- Provide face covers or surgical masks to all employees unless their job duties require the use of a respirator or other personal protective equipment;
- Provide employee training on employer COVID-19 policies and procedures in accessible formats and in languages understood by employees;
- Recommend or require that unvaccinated visitors wear face-covering and that all indoor public visitors wear face-covering in areas of significant or high transmission;
- Maintain ventilation systems, including installing MERV-13 or better air filters, and use HEPA filters in high-traffic 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 who raise concerns about COVID-19-related threats and establish an anonymous process for employees to raise such concerns; and
- Continue to follow all other applicable OSHA standards.
Does OSHA’s updated COVID-19 guide apply to government plans?
California, Washington, Oregon, Alaska, and over a dozen other states and territories come under the jurisdiction of their own state plans for occupational health and safety (“State Plan States”). State plan states do not need to adopt OSHA COVID-19 federal guidelines if their plan protects workers equally or to a greater extent.
However, states in the state plan may still use the updated guidance from OSHA as a basis to support an alleged violation of the state plan’s equivalent of the OSHA general mandatory clause or specific safety and health standards. In addition, some states have introduced temporary or permanent COVID emergency standards. Unlike these guidelines, these state standards are enforceable on their own terms, and employers in jurisdictions with these regulations should familiarize themselves with the legal obligations that these regulations impose.
Employers should continue to follow applicable federal, state, and local COVID-19 rules and regulations and individually assess whether implementing additional safety precautions based on OSHA’s updated COVID-19 guidance is appropriate.