At the same time that OSHA released an emergency temporary standard (ETS) to protect healthcare workers from COVID-19; it also released updated guidance for general industries, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” This guidance aligns with current Centers for Disease Control and Prevention (CDC) guidelines and scientific research. It recommends that employers encourage COVID-19 vaccinations, provide paid leave for workers to get vaccines, and focus workplace protections on unvaccinated and at-risk workers. These protections should consist of multi-layered interventions designed to protect unvaccinated and otherwise at-risk workers, including providing face coverings or other personal protective equipment (PPE) and physical distancing in all communal work areas.

Paralleling language can be found in OSHA’s General Duty Clause and recently updated guidance. This updated guidance aims 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." Although general industries are not mandated to act under the recently issued ETS, they still, at a minimum, must provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm,” under OSHA’s General Duty Clause. By following the updated guidance, employers can ensure that they are meeting their workplace safety obligations.

OSHA Recommendations

In alignment with current CDC guidelines, OSHA’s recommendations emphasize the vaccinated versus unvaccinated workers, stating clearly that most employers no longer need to take steps to protect their fully vaccinated workforce unless otherwise required by more stringent state or local regulations. When all workers are fully vaccinated against COVID-19, employers are no longer recommended to take precautions against the spread of COVID-19. However, this does not apply to workplaces covered by the ETS and mask requirements for public transportation. It is strictly dependent on the entire workforce being completely vaccinated without exception. If unvaccinated or at-risk workers exist in a fully vaccinated workforce, employers should take protective measures to protect those workers.

The definition of "unvaccinated worker" is clearly defined by the CDC as "any worker who is not yet two weeks removed from their final vaccination shot." However, the definition of "at-risk worker" is less apparent and seemingly can include individuals who have received vaccinations, for example, workers with a poor immune response or immune-weakening medications that may affect their ability to have a full immune response to vaccination. Therefore, it is recommended employers take steps to protect at-risk workers just as they would unvaccinated workers, regardless of their vaccination status.

The recommended steps outlined in OSHA's updated guidance apply to both unvaccinated and at-risk workers. In these cases, OSHA recommends implementing multiple layers of controls to protect the workplace from the transmission of COVID-19.

Main controls selected to help protect unvaccinated or otherwise at-risk workers include:

• Having a written infectious disease preparedness and response plan in place, along with training on its implementation and education on COVID-19 policies and procedures
• Ensuring that all workers infected with COVID-19, those experiencing symptoms, and unvaccinated workers with close contact with a person with a confirmed case of COVID-19 are separated from the workplace
• Mandating face coverings or other PPE for unvaccinated and at-risk workers and suggest the same for customers, visitors, and guests
• Physical distancing of unvaccinated and at-risk workers in communal work areas
• Performing routine cleaning and disinfection in accordance with current CDC guidelines
• Maintaining ventilation systems
• Providing paid time off for workers to get vaccinated
• Implementing strong anti-retaliation policies for workers to voice concerns about COVID-19-related hazards
• Recording and reporting COVID-19 infections and deaths when such infections are work-related

These recommended precautions to protect unvaccinated and at-risk workers should be implemented in addition to all applicable mandatory OSHA standards.

High-Risk Workplace Settings Outside of Healthcare

High-risk industries within healthcare are protected by requirements within the Healthcare COVID-19 ETS. However, high-risk industries still exist in manufacturing and food processing industries that are not subjected to the recently released ETS. Therefore, OSHA announced additional precautions for these settings in an appendix entitled, “Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers.” OSHA recognizes that employers should take extra steps to mitigate the spread of COVID-19 where there is heightened risk due to unvaccinated or at-risk workers. Settings where there is high risk of exposure include those where unvaccinated or at-risk workers are working in close contact with one another and where they often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Also, settings where unvaccinated or at-risk workers may be exposed to respiratory droplets within confined settings, such as break rooms, locker rooms, and entrances/exits to the facility that may contribute to the risk of exposure.

Some additional steps to mitigate the spread of COVID-19 in high-risk industries include:

• Staggering break times in high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks
• Staggering arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near timeclocks
• Providing visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing
• Implementing strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildings and the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace

It is important to note that recommendations for high-risk industries are in addition to the precautions recommended for the general industry.

More Stringent State Regulations

Several states have issued standards intended to prevent COVID-19 in the workplace. California, Oregon, and Virginia have mandated the most comprehensive and restrictive measures, which require employers to establish, implement, and maintain a written COVID-19 Prevention Plan, which identifies worker exposures to COVID-19 health hazards and implements effective policies and procedures that mitigate such risks. Compliance obligations continue for employers in these states, regardless of any changes in current CDC guidelines or OSHA guidance, until a State Plan is legally challenged, rescinded, or revised.

For example, until recently in Virginia, the removal of masks at work by fully vaccinated workers was contrary to the highly publicized Virginia Department of Labor and Industry’s Division of Occupational Safety and Health (VOSH) Final Permanent Standard (FPS). VOSH amended the FPS on May 19, 2021, to address this, and VOSH has now published a series of FAQs that address masking and physical distancing for fully vaccinated workers.

More recently, New York has become the first state to mandate a broader airborne infectious disease written plan. On May 5, 2021, the New York Health and Essential Rights Act (NY HERO Act) was passed, mandating workplace health and safety protections in response to the COVID-19 pandemic. The purpose of the NY HERO Act is to protect workers during a future airborne infectious disease outbreak. The NY HERO Act minimum health and safety requirements and templates related to airborne infectious disease prevention were released on July 8, 2021. The HERO Act gives employers until August 5, 2021 to either adopt one of the model standard exposure prevention plans applicable to their industry or develop and establish an alternative prevention plan that meets or exceeds the minimum standards.

In Conclusion 

While the updated OSHA guidance underlines the need to focus protections on unvaccinated and at-risk workers, there are still a few precautions to be taken to protect some fully vaccinated individuals. First, the OSHA cautions that employers continue to follow existing federal, state, and local rules and regulation requirements, including local business and workplace guidance concerning the prevention of COVID-19. Also, OSHA reminds employers that individuals who are at higher risk because they have certain medical conditions that make them more susceptible to COVID-19 should continue to wear face coverings, practice physical distancing, and undertake protective measures, even if fully vaccinated. Finally, OSHA recommends continued protective practices (including face coverings and physical distancing) for all individuals in public transportation settings, regardless of vaccination status.

If you have any questions, you can click here to schedule a customized consultation with Shari Solomon, President of CleanHealth Environmental. In addition, we invite you to download our checklist with 10 OSHA recommendations to help mitigate the transmission of COVID-19 at your workplace.