OSHA Updates its Guidance on the Prevention of COVID in the Workplace By Adopting Recommendations Analogous to The CDC’s Latest Findings and Recommendations and Highlighting Manufacturing as a High-Risk Industry

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Today OSHA updated its previously issued “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The updates focus on: 1) helping employers protect unvaccinated workers (including those who are only partially vaccinated) or otherwise at risk (including those who are immunocompromised; and 2) implementing new guidance involving fully-vaccinated workers located in areas of substantial or high community transmission. They also highlight high-risk industries, including manufacturing, and provide additional recommendations for those industries.
 
General Recommendations for all Workplaces
 
Noting updated evidence and information issued by the CDC on July 28, 2021, and preliminary evidence suggesting that fully vaccinated people who do become infected with the Delta variant can be infectious and can spread the virus to others, OSHA has largely adopted the CDC’s recommendations, noting specifically that “employers should consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”
 
Citing the OSH Act’s General Duty Clause, as well as its established standards that remain in place regarding PPE, respiratory protection, sanitation, bloodborne pathogens and access to medical and exposure records, OSHA offers the following multi-layered interventions on which employers should engage with workers and representatives and consider implementing (many of which are included in existing COVID-19 prevention programs):

• Facilitating employee vaccinations, including granting paid time off for employees to get vaccinated and recover from any side effects and adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
• Instructing workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work, including ensuring that absence policies are non-punitive and eliminating or revising policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19.
• Implementing 6 feet of physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers, including limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time and using transparent shields or other solid barriers to separate workers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people.
• Providing workers with face coverings or surgical masks at no cost as appropriate, unless their work task requires a respirator or other PPE and while providing reasonable accommodations for workers unable to wear or who have difficulty wearing certain types of face coverings due to a disability or based on a religious accommodation under federal anti-discrimination laws.
• Educating and training workers on COVID-19 policies and procedures using accessible formats and in language they understand, including training management and non-management employees, contractors and visitors on policy implementation and the risks of contracting COVID-19 and the Delta variant.
• Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission based on the CDC’s Integrated COVID-19 County Tracking System. 
• Maintaining and Improving Ventilation Systems, some options for which are discussed in the CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
• Performing routine cleaning and disinfection, including following CDC cleaning and disinfection recommendations if someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, as well as mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
• Recording and reporting COVID-19 infections and deaths under OSHA’s mandatory rules in 29 CFR part 1904 for work-related cases of COVID-19 illness if: 1) the case is a confirmed case of COVID-19; 2) the case is work-related (as defined by 29 CFR 1904.5); and 3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work.)
• Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards, being mindful of Section 11(c) of the OSH Act, which prohibits various adverse actions against employees who engage in various protected activities, and ensuring workers know whom to contact with questions or concerns about workplace safety and health (ideally using a hotline or other method for workers to voice concerns anonymously).
• Following other applicable mandatory OSHA standards that apply to protecting workers from infection remain in place, including PPE (29 CFR part 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020), and OSHA’s mandatory Emergency Temporary standard for many healthcare workplaces.

 
Additional Recommendations for High-Risk Workplaces, Including Manufacturing Settings
 
In addition to those general recommendations described above, OSHA also provides in its updates certain best practices for higher-risk workplaces – which include manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings – to protect unvaccinated and otherwise at-risk workers.
 
In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace, OSHA recommends that employers:

• Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Such workers should maintain at least 6 feet of distance from others at all times, including on breaks.
• Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk workers in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
• Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, encourage and consider requiring customers and other visitors to do the same.
• Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace, and ASHRAE Guidance for Building Operations and Industrial Settings During the COVID-19 Pandemic.

In meat, poultry, and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers, OSHA recommends that employers:

• Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
• Space such workers out, ideally at least 6 feet apart, and ensure that such workers are not working directly across from one another. Barriers are not a replacement for worker use of face coverings and physical distancing.
• If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
• Barriers do not replace the need for physical distancing – at least six feet of separation should be maintained between unvaccinated and otherwise at-risk individuals whenever possible.

It is important to note that while OSHA specifically qualifies its updates as “advisory in nature and informational in content,” employers should anticipate that OSHA inquiries will include questions regarding some or all of the foregoing recommendations on a going forward basis.