Highlights

• The Occupational Safety and Health Administration (OSHA) has updated its advisory guidance on mitigating and preventing the spread of COVID-19 in the workplace for both vaccinated and unvaccinated workers.
• The guidance, which applies to all industries, encourages employers to mandate vaccinations for employees and implement regular testing requirements for unvaccinated employees.
• This Holland & Knight alert addresses the key components of OSHA’s guidance.

The Occupational Safety and Health Administration (OSHA) on Aug. 13, 2021, updated its advisory guidance on mitigating and preventing the spread of COVID-19 in the workplace for both vaccinated and unvaccinated workers previously issued on June 10, 2021. (See Holland & Knight’s previous alert, “OSHA Issues New Employer COVID-19 Guidance Regarding Unvaccinated and At-Risk Workers,” June 30, 2021.)

OSHA updated the guidance to incorporate the Centers for Disease Control and Prevention (CDC) guideline change and revised recommendations of July 27, 2021, including encouraging employers to mandate vaccinations for workers, subject to legally recognized exemptions. OSHA’s updated guidance also includes revised recommendations on the use of masks, physical distancing, and testing requirements for both vaccinated and unvaccinated workers.

General Overview

OSHA’s previous guidance of June 10, 2021, did not encourage employers to implement mandatory vaccination policies – it simply provided that employers should encourage their employees to get vaccinated. OSHA’s new guidance, which now encourages employers to mandate vaccinations, reflects the increased incidence of this policy in a myriad of workplaces across industries. Employers are, with increased frequency, requiring workers to become vaccinated, subject to legally recognized exemptions. OSHA’s guidance further supports this trend.

Regardless of vaccination policies, it is likely that most workplaces will still have unvaccinated workers due either to personal choice or a qualifying exemption (religious or medical). Accordingly, OSHA’s new guidance aligns itself with recommendations from the CDC to implement mask wearing, testing and physical distancing requirements, including for certain industry sectors. This guidance, while advisory in nature and not a standard or regulation, is important for employers to consider pursuant to the Occupational Safety and Health Act (the OSH Act) which requires that employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. Further, even in the absence of guidance or a specific OSH Act standard, the OSH Act’s General Duty Clause, 29 U.S.C. § 654, 5(a)1, requires employers to “provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” OSHA’s advisory guidance is instructive as to how employers can meet their obligations under the General Duty Clause.

Vaccinated Workers

OSHA’s recent guidance represents a fairly significant shift from the June 2021 guidance. The earlier guidance made clear that, unless otherwise required by federal, state, local, tribal or territorial laws or regulations, employers that were not subject to the healthcare Emergency Temporary Standard (ETS) did not have to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Such advisory employer leeway has been walked back substantially by the recent guidance.

OSHA’s new guidance, which aligns with CDC recommendations, makes clear that employers should implement some protective measures to protect their workers from becoming infected with COVID-19 due to the new Delta variant in areas of substantial or high community transmission. At the time of this alert, such areas (delineated by the CDC on a county or region basis) constitute a substantial majority of the United States and nearly every urban area. As reported by OSHA, preliminary evidence suggests that fully vaccinated people who become infected with the Delta variant may become infectious and spread the virus to others, including other vaccinated persons.

Both the CDC and OSHA advise that vaccinated individuals: 1) wear a mask in public indoor settings, regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated, and 2) get tested three to five days following a known exposure to someone with suspected or confirmed COVID-19. Notably, OSHA and the CDC have updated their guidance for K-12 schools to recommend universal indoor masking for all teachers, staff, students and visitors, regardless of vaccination status.

Mandating Vaccinations

Although OSHA’s June 2021 guidance recommended that employers help facilitate employee vaccinations by offering paid time off to receive the vaccine and for any vaccine side effects, OSHA’s revised guidance takes this a step further. Now, OSHA encourages employers to adopt mandatory vaccination policies subject to legally recognized exemptions. This stance is consistent with guidance from the U.S. Equal Employment Opportunity Commission, which also takes the position that employers can implement mandatory vaccination policies.

Steps to Protect Unvaccinated Workers

OSHA’s recent guidance as applied to unvaccinated workers remains largely the same, with the important addition that employers should require regular COVID-19 testing for workers who are unvaccinated. Key controls identified by OSHA to help protect unvaccinated or otherwise at-risk workers include:

1. ensuring that all workers infected with COVID-19, those experiencing symptoms and unvaccinated workers with close contact of a person with a confirmed case of COVID-19 are separated from the workplace
2. physical distancing of unvaccinated and at-risk workers in communal work areas
3. maintaining ventilation systems
4. continuing to mandate face coverings or other personal protective equipment (PPE) for workers and suggest the same for customers, visitors and guests
5. performing routine cleaning and disinfection
6. educating and training workers on COVID-19 policies and procedures
7. implementing strong anti-retaliation policies for workers to voice concerns about COVID-19-related hazards