On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced significant modifications to its guidance issued on January 29, 2021 entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace. https://theblogforbusinesslaw.com/osha-announces-new-workplace-covid-19-enforcement-actions/ The new guidance adopts the recent relaxation of social distancing and mask wearing for fully vaccinated persons adopted by the Centers for Disease Control and Prevention (“CDC”) in its Interim Public Health Recommendations for Fully Vaccinated People, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html, issued on May 13, 2021. Most employers, excepting those in healthcare and public transportation, “no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure,” unless “federal, state, local, tribal, or territorial laws, rules, and regulations” require otherwise according to OSHA.
1. OSHA Now Exempts Employers from Protecting Fully Vaccinated Workers from Workplace Exposures to the Covid-19 Virus.
OSHA has identified the purpose of its new guidelines as the provision of guidance to employers to protect unvaccinated workers and otherwise at-risk workers from workplace infections by the Covid-19 virus. The guidelines describe otherwise at-risk workers as individuals who experience less than a full immune response from vaccination. It cites persons who have previously had organ transplants or who have used immune-weakening medications as examples. Generally, the guidelines exempt employers from taking any “steps to protect their workers from Covid-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated.” They, however, oblige employers to “protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.” The guidelines adopt the CDC’s definition of a fully-vaccinated person, namely, those people vaccinated for Covid-19 two weeks or more after they receive their final dose of a vaccine approved by the U.S. Food and Drug Administration.
2. OSHA Requires Employers to Protect Their Unvaccinated and Otherwise At-Risk Workers from Workplace Exposures to Covid-19 Infections.
The agency urges employers to consult with their workers and any labor unions representing them to determine how to implement ways to protect their unvaccinated and otherwise at-risk workers from workplace transmissions of Covid-19. It further recommends that employers take each of the following steps:
a. Grant paid time off for employees to get vaccinated.
b. Instruct any infected workers, unvaccinated employees who have had close contact with anyone who tested positive for Covid-19, and all workers with Covid-19 symptoms to stay home from work.
c. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
d. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other personal protective equipment (“PPE”).
e. Educate and train workers on the employer’s Covid-19 related policies and procedures using accessible formats and in a language they understand.
f. Suggest that unvaccinated customers, visitors, or guests wear face coverings.
g. Maintain ventilation systems.
h. Perform routine cleaning and disinfection.
i. Record and report Covid-19 infections and deaths, if work-related, pursuant to 29 C.F.R. 1904.
j. Implement protections from retaliation and establish an anonymous process for workers to voice concerns about Covid-19 related hazards.
k. Follow other applicable mandatory OSHA standards–generally, PPE (29 C.F.R. 1910.132-33), respiratory protection (29 C.F.R. 1910.134), sanitation (29 C.F.R. 1910.141), protection against bloodborne pathogens (29 C.F.R. 1910.1030), and OSHA’s requirements for employee access to medical and exposure records (29 C.F.R. 1910.1020).
Although OSHA has described these steps as recommendations, employers should view them as requirements. The agency would likely cite any employer that ignored them as the basis for a general duty clause violation of the Occupational Safety and Health Act (“Act”), which requires employers to provide a safe and healthful workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.
3. OSHA Further Views Manufacturing, Food Processing, and High Volume Retail or Grocery Sales as Higher-Risk Workplaces Whose Employers Need to Take Additional Steps to Protect Unvaccinated and Otherwise At-Risk Workers.
According to OSHA, higher risk workplaces share certain characteristics in common. First, they have unvaccinated and otherwise at-risk workers working in close contact with each other, such as, on production or assembly lines. Such close contact may also occur in any workplace where employees come into close contact with one another at specific times, for example, when clocking in or out, during breaks, or in locker or changing rooms. Where unvaccinated or otherwise at-risk workers have prolonged closeness to coworkers, such as for the duration of work shifts, such continued contact increases the potential risk of Covid-19 transmission. OSHA further addresses other distinctive factors that may increase risk among unvaccinated and otherwise at-risk workers, such as employer-provided transportation in ride-share vans or shuttle vehicles, community settings in areas with elevated community transmission, and communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals. It names workplaces involving manufacturing, meat and poultry processing, high-volume retail and grocery sales, and seafood processing as examples of higher risk workplaces.
For such higher risk workplaces, OSHA recommends additional precautions beyond those that its general precautions for all workplaces. Specifically, in all higher risk workplaces where employers have any unvaccinated or otherwise at-risk workers, OSHA urges employers to implement the following additional precautions:
i. Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks.
ii. Unvaccinated and at-risk workers should socially distance by keeping a distance of at least six feet from others at all times.
iii. Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees in parking areas, locker rooms, and near time clocks.
iv. Provide visual cues, such as floor markings and signs, as a reminder to maintain social distancing.
v. Implement workplace specific strategies to improve ventilation that protects workers as outlined in the CDC’s Ventilation in Buildings and in the OSHA Alert Covid-19 Guidance on Ventilation in the Workplace.
vi. If food processing or assembly line configurations require workers to stand next to or across from each other, then the use of barriers can help to reduce the risks of Covid-19 transmission for unvaccinated and otherwise at-risk workers.
vii. In retail workplaces, employers should:
a. suggest masks for unvaccinated or unknown status customers and other visitors,
b. consider the use of barriers between work stations and the locations where customers stand with pass-through openings at the bottom, if possible,
c. relocate electronic payment terminal/credit card readers to a farther distance away from unvaccinated or otherwise at-risk cashiers, and
d. shift primary stocking activities by unvaccinated or otherwise at-risk workers to off-peak or after hours when possible.
vii. If unvaccinated and otherwise at-risk workers travel to and from work in employer-provided buses and vans, employers should:
a. notify such workers of the risk of Covid-19 transmission that such travel involves and limit the number of such workers in any single vehicle and
b. make sure that all unvaccinated and otherwise at-risk workers sharing a vehicle wear appropriate face coverings.
Like the general recommendations, employers with higher risk workplaces should consider OSHA’s additional precautions for such workplaces to be mandatory, rather than voluntary. The agency would likely cite an employer for violating the Act’s general duty clause if unvaccinated or otherwise at-risk workers become infected by Covid-19 from workplace exposure to the virus.
4. Conclusion.
The development of effective vaccinations for Covid-19 has created a new challenge for employers. They can lawfully require their workers to get vaccinated as a condition of employment. Surveys, however, show that the vast majority of employers encourage, rather than require, their workers to be vaccinated. Hence, employers typically have both fully vaccinated workers and unvaccinated employees. Both the CDC and OSHA have recognized that, at least in terms of workplace precautions to protect workers from Covid-19 transmission, employers can treat fully vaccinated workers in entirely different ways from their unvaccinated workers and otherwise at-risk employees. On the one hand, for fully vaccinated workers, employers need not take any such precautions. On the other hand, the presence of either unvaccinated or otherwise at-risk workers, or both, basically requires employers to require such workers to wear face coverings, to separate such workers by either distances of at least six feet or to erect barriers separating other unvaccinated or otherwise at-risk workers from each other. They must also implement other strategies, such as, improved ventilation systems and staggered starting and finishing times to minimize workplace exposures to the Covid-19 virus by their unvaccinated or otherwise at risk workers. Therefore, OSHA’s new guidelines for workplaces other than in healthcare or transportation offers great news for employers with fully vaccinated workforces. It, however, leaves all employers with less than fully vaccinated workforces where they have been since the pandemic began. For more information about the CDC’s new guidance or its implementation in a particular workplace, please contact Gerry Richardson at (314) 552-4053 | grichardson@evans-dixon.com
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