Health Law Monitor

Update Guidance for Employers Not Covered by OSHA's COVID-19 ETS

July 9, 2021

This article was originally published in Jackson Kelly’s Workplace Safety and Health News Alert on June 21, 2021. This guidance is pertinent to health care providers and relates to federal Occupational Safety and Health Administration (OSHA) requirements in various workplaces. Comments to the OSHA guidance issued on June 17, 2021 must be submitted by August 20, 2021.

On May 16, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance for masking noting that fully vaccinated individuals did not need to wear a mask in most settings. After the May 16, 2021 CDC guidance about de-masking, OSHA added the following statement to its COVID webpage on May 17, 2021:

“OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

On June 10, 2021, OSHA replaced that statement with updated guidance. The main changes are:

Employers should focus protections on unvaccinated and otherwise at-risk workers.
Employers should encourage COVID-19 vaccination.
Links to guidance with the most up-to-date content are provided.

Response to the CDC De-Masking Guidance

The updated OSHA guidance first summarized the May 16, 2021, CDC guidance (which was later updated on May 28, 2021):

CDC’s updated guidance explains that under most circumstances, fully vaccinated people do not need to take all the precautions that unvaccinated people should take. This included that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. People are considered fully vaccinated for COVID-19 two weeks or more after they have completed their final dose of a COVID-19 vaccine. However, the CDC did recommend ongoing mask use for immunocompromised individuals who are vaccinated and individuals using most public or mass transit.

The OSHA guidance echoes to this guidance by stating:

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.

Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, most employers no longer need to take 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.

The June 10, 2021 guidance adds as a caution in a footnote:

CDC recommends that fully vaccinated people should nonetheless:

Watch out for symptoms of COVID-19, especially if they have been around someone who is sick. If they have symptoms of COVID-19, they should get tested and stay home and away from others.
Monitor for symptoms of COVID-19 for 14 days following an exposure.

Protecting Unvaccinated and At-Risk Employees

The guidance recognizes that not all individuals in a workplace may be vaccinated. It provides:

Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.

The guidance recommends that employers implement multiple layers of controls to protect employees who are unvaccinated or at-risk (e.g., those with compromised immune systems). The recommended controls include:

Making it easier for employees to become vaccinated (e.g., by providing paid time off for vaccination and recovery afterward);
Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for the virus, and all workers with COVID-19 symptoms to stay home from work;
Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
Educating and training employees on the employer’s COVID-19 policies and procedures using accessible formats and in language they understand;
Suggesting that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces;
Maintaining ventilation systems;
Performing routine cleaning and disinfection;
Recording and reporting COVID-19 infections and deaths as required by 29 C.F.R. Part 1904;
Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
Following applicable mandatory OSHA standards.

An appendix describes measures appropriate for higher-risk workplaces with mixed-vaccination status employees. These include:

Staggering break times or providing temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk employees congregating during breaks;
Encouraging unvaccinated or otherwise at-risk employees to maintain at least 6 feet of distance from others at all times, including on breaks;
Staggering employee arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees in parking areas, locker rooms, and near time clocks;
Providing visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing;
Implementing strategies (tailored to the workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA’s COVID-19 Guidance on Ventilation in the Workplace.

The appendix provides additional recommendations for workplaces with processing or assembly lines, retail workplaces, and for traveling to and from work in employer-provided buses and vans.

The COVID-19 pandemic is not yet over and federal, state, and local regulation continue to change in response to new information. Keeping businesses informed with up-to-date information regarding requirements and best practices is a key component of the work done by the Labor and Employment and Workplace Safety & Health attorneys at Jackson Kelly. We are prepared to answer any questions and help your business thrive in the changing environment.

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