On August 13, 2021, the Occupational Safety and Health Administration (OSHA) issued new guidance on mitigating and preventing the spread of COVID-19 in non-health care work settings. The new guidance updates OSHA’s prior guidance, issued in June 2021, to incorporate the Center of Disease Control and Prevention’s (CDC’s) latest recommendations issued in response to the spread of the delta variant (discussed here).
Who is covered?
OSHA’s new guidance covers all employers subject to OSHA’s jurisdiction who are not covered by OSHA’s COVID-19 Healthcare Emergency Temporary Standard, except that OSHA acknowledges that special CDC guidance applies to certain settings, such as K-12 schools and public transportation.
In addition, the new guidance contains an updated appendix of supplemental mitigation measures recommended for higher-risk work settings (e.g., manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing).
Is OSHA mandating vaccination for private sector employees?
No, however, employers are strongly encouraged to get their workforces vaccinated.
Like OSHA’s prior guidance for non-health care work settings, the new guidance recommends that employers continue to take a multi-layered approach to preventing the spread of COVID-19 in the workplace, including by encouraging vaccination, implementing social distancing protocols for unvaccinated employees, instructing employees with COVID-19 symptoms and those who have tested positive for COVID-19 to stay home from work, providing face coverings, and educating and training workers on the employer’s COVID-19 policies and procedures.
Although the new guidance does not require employers to mandate vaccinations, it does take a strong stance in favor of workers becoming vaccinated. OSHA states that vaccination is “the most effective way to protect against severe illness or death from COVID-19” and specifically advises employees to “get a COVID-19 vaccine as soon as you can.” According to OSHA, employers should facilitate employee vaccination by:
- Granting paid time off for employers to get the vaccine and recover from vaccine-related side effects;
- Considering working with public health authorities to provide vaccinations onsite;
- Considering policies that “require employees to get vaccinated or to undergo regular COVID-19 testing—in addition to mask wearing and physical distancing—if they remain unvaccinated.”
The latter recommendation, sometimes referred to as a “soft mandate,” is the approach the White House recently recommended for all executive agency employees and onsite federal contractors.
Has OSHA’s guidance for fully vaccinated workers changed?
Yes. Mirroring current CDC recommendations, OSHA’s new guidance recommends increased safety measures for fully vaccinated employees in light of scientific evidence that the COVID-19 delta variant can cause “breakthrough” infections in fully vaccinated people and that fully vaccinated people can spread the virus to others. (As a reminder, “fully vaccinated” means two weeks past receiving the Johnson & Johnson vaccine, or the second dose of the Pfizer or Moderna vaccine.)
OSHA now recommends that fully vaccinated workers wear masks in public indoor settings in communities the CDC identifies as having substantial or high transmission—which currently includes the vast majority of the United States. Fully vaccinated employees should also be allowed to choose to wear a mask regardless of area transmission level.
In addition, OSHA has updated its recommendations for fully vaccinated workers with known exposure to the virus. OSHA states that, as recommended by the CDC, such individuals should get tested three to five days following exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
What about customers, visitors, and other third parties who enter the workplace?
OSHA now recommends that employers suggest or require third parties in the workplace to wear face coverings, both in public-facing workplaces such as retail establishments and in any public indoor settings in areas of substantial or high transmission.
What should employers do in response to the new OSHA guidance?
Although OSHA’s new guidance is advisory and does not create legal obligations for employers, employers should review and update their COVID-19 protocols as needed in light of OSHA’s guidance to meet their obligation to provide a safe workplace.
Employers updating their plans as a result of the new OSHA guidance should consider a number of factors, including:
- Employers adopting a “soft mandate” (i.e., employee must get vaccinated or submit to weekly or semi-weekly COVID-19 testing) must consider how the tests will be administered, how often they will be administered, and who will pay for them.
- Employers who require the vaccine (with or without the option to remain unvaccinated and undergo regular testing) still must offer reasonable accommodations for employees with disabilities; religious belief, practice, or observance; and pregnancy in accordance with applicable anti-discrimination laws.
- Employers must comply with state and local safety requirements, regardless of this OSHA guidance.
If you require assistance or have questions with how to best implement OSHA’s COVID-19 guidelines in your workplace, please contact an author of this post or the Hogan Lovells lawyer with whom you typically work.
Authored by George Ingham, Amy Folsom Kett, and Shannon Finnegan*
*Shannon Finnegan, an author of this post, is a Law Clerk in the New York office.
