What OSHA’s New Covid Guidance Means for You 

On Aug. 13, the Occupational Safety and Health Administration (OSHA) issued Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace. This release updates prior OSHA guidance to reflect changes for fully vaccinated individuals issued by the Centers for Disease Control (CDC). 

In its updated guidance, OSHA emphasizes that vaccination is “the most effective way” to protect workers from the risk of Covid in the workplace and recommends that all workers, including fully vaccinated individuals, wear a mask in public indoor settings in areas of substantial or high transmission. 

In addition, OSHA urges employers to require workers to get vaccinated or to undergo regular Covid testing. The agency also strongly encourages employers to provide paid time off to workers for the time it takes to get vaccinated and recover from side effects.

While acknowledging that the guidance is not a standard or regulation and that it creates no new legal obligations, OSHA states that its guidance contains recommendations that are intended to “assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”

The Guidance

OSHA states that employers should engage their people to determine how to implement multi-layered interventions to protect at-risk workers and mitigate the spread of the virus and identifies key controls for companies to implement. OSHA suggests that employers:

  • Facilitate employees getting vaccinated by providing paid time off, work with local agencies to provide vaccinations in the workplace, and consider adopting policies that require employees to get vaccinated
  • Instruct workers who have Covid symptoms or who have had close contact with someone who tested positive for the virus, and/or are suffering from symptoms related to Covid, to stay home from work
  • Provide workers with face coverings at no charge and encourage employees to wear face coverings in the workplace and other public indoor settings, subject to reasonable accommodations for workers who are unable to wear face coverings due to a disability or religious beliefs
  • Require physical distancing in all shared or common work areas for unvaccinated and at-risk workers and consider measures such as flexible worksites and work hours, or meeting and travel options to limit exposure to unvaccinated or at-risk workers
  • Educate and train workers about Covid policies and procedures;
  • Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in the workplace in areas of substantial or high transmission as identified by the CDC
  • Use and maintain appropriate ventilation systems that function properly
  • Perform routine cleaning and disinfection, particularly if someone who has been in the facility within the prior 24 hours is suspected of having or confirmed to have Covid
  • Record and report Covid infections and deaths as required by OSHA regulations
  • Implement protections against possible retaliation claims by providing an anonymous process for workers to voice concerns about Covid-related hazards
  • Continue to follow other applicable mandatory OSHA standards to protect workers from infection (OSHA emphasized that its prior mandatory standards remain in place — e.g., requirements for PPE, respiratory protection, and sanitation)

The agency also identified several types of workplaces that are considered “high-risk” due to workplace environmental practices. These include manufacturing, meat-processing, high-volume retail and grocery, and agricultural-processing settings or other similar settings where, because of close contact, extended duration of contact, contact with limited ventilation, or other factors, there may be an increased risk of exposure to Covid. (For these higher-risk settings, OSHA describes additional steps employers should take to mitigate the spread of Covid.) 

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Why This Guidance Is Important

Even though the guidance is advisory in nature, the recommendations are intended to help employers recognize and eliminate hazards likely to cause death or serious physical harm from Covid as part of their obligation to provide a safe and healthful workplace under the Occupational Safety and Health Act’s General Duty Clause. 

This guidance also signals OSHA’s expectations regarding workplace practices that are sufficient to avoid citation. In recent months, the agency has more actively applied the General Duty Clause as grounds for citing employers for Covid hazards that are not covered by an existing standard.

Thus, you may want to review and update your policies and procedures and consider how best to ensure they are appropriately aligned with this new guidance from OSHA.

Rebecca B. DeCook is a partner and co-chair of Moye White’s employment team. For more than 25 years she has represented business clients in arbitrations, mediations, state and federal court proceedings, and a variety of administrative proceedings before federal, state, and local government agencies. She can be reached at becky.decook@moyewhite.com or (303) 292-7917.

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