Stephanie Gantman Kaplan and Jessie Chen*
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Emergency Temporary Standard (ETS) which outlines new requirements for most healthcare settings, along with guidance for non-healthcare employers. This post addresses OSHA’s guidance for non-healthcare employers. While employers were expecting more definitive directives from the federal government’s primary health and safety agency, they will, instead, have to consider whether and to what extent they should adopt the suggested measures to continue to promote a safe workplace.
The recent OSHA guidance provides that, unless required by federal, state, local, or other laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk. But, employers are encouraged to engage with their workforce to implement measures to protect unvaccinated or otherwise at-risk workers, including:
- Granting paid time off for employees to get vaccinated.
- Instructing all workers who are infected with or have symptoms of COVID-19 to stay at home.
- Instructing unvaccinated workers who have had close contact with someone who tested positive for COVID to stay at home.
- Implementing physical distancing for unvaccinated and otherwise at-risk workers in communal work areas.
- Providing, at no cost, face coverings for unvaccinated and otherwise at-risk workers.
- Educating and training workers on company COVID-19 policies in accessible formats and languages.
- Suggesting unvaccinated customers, visitors, and guests wear face coverings.
- Maintaining appropriate ventilation.
- Performing routine cleaning and disinfection. This includes following Centers for Disease Control and Prevention (“CDC”) cleaning and disinfection recommendations.
- Recording and reporting work-related cases of COVID-19 under 29 CFR 1904.
- Implementing protection from retaliation for workers who raise concerns about COVID-19-related hazards.
- Following any other applicable mandatory OSHA standards.
OSHA provided additional guidance to employers that operate workplaces that are considered higher-risk environments, which include those where there is close or prolonged contact among employees, or shared transportation, housing, or communal spaces. In these environments, OSHA recommends the following additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers:
- Staggering break times in high-population workplaces.
- Staggering arrival/departure times.
- Providing visual cues to remind people to maintain physical distance.
- Improving ventilation.
- Properly spacing unvaccinated or otherwise at-risk workers who are in food processing or assembly lines.
- Suggesting masks for unvaccinated or unknown-status customers and visitors.
- Moving electronic payment terminal/credit card readers farther away from unvaccinated or otherwise at-risk workers.
- Moving stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours.
While most of these recommendations are in line with initial guidance from OSHA, the CDC, and other agency and governmental orders, the continued emphasis on the mitigating measures confirms OSHA’s expectations for employers across industries. We recommend all employers review the guidance carefully and consider adjustments to their current policies and practices as appropriate. It is also important to keep in mind that OSHA is just one of the agencies providing COVID-19 guidance to employers; we are tracking guidance from the Equal Employment Opportunity Commission (“EEOC”) and Department of Labor (“DOL”), as well as from state and local agencies and will provide updates as they are published. As always, we are here to help. For questions or more information about the recent OSHA guidance, please contact Stephanie Gantman Kaplan at firstname.lastname@example.org.
*Jessie Chen served as a Blank Rome 2021 summer associate