OSHA Issues New COVID-19 Guidance Focused on Protecting Unvaccinated and At-Risk Employees

Poyner Spruill LLP

Poyner Spruill LLP

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) –  the federal agency tasked with ensuring that working conditions are safe and healthful by setting and enforcing standards and by providing training, outreach, education, and assistance – issued updated guidance for businesses to protect employees from COVID-19.  OSHA also issued COVID-19 Emergency Temporary Standard which specifically applies to healthcare settings.

As more people throughout the United States continue to receive the COVID-19 vaccine, OSHA’s updated guidance for non-healthcare settings is aimed at protecting unvaccinated and “at-risk” employees from the virus.  Importantly, OSHA highlights that “[t]his guidance is not a standard or regulation, and it creates no new legal obligations,” but “[i]t contains recommendations as well as descriptions of existing mandatory OSHA standards.”

Employees are considered fully vaccinated two weeks after they have completed their final dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration.  OSHA recognizes that such employees may follow the Centers for Disease Control and Prevention (“CDC”) Interim Public Health Recommendations, which provides that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by law or local business and workplace guidance.

In comparison, unvaccinated and “at-risk” employees must continue to follow safety guidelines to prevent the spread and contraction of COVID-19.  “At-risk” employees are individuals who have health conditions that may affect their ability to have a full immune response to the COVID-19 vaccine, cannot get vaccinated, or cannot use face coverings.

To best protect unvaccinated and at-risk employees, OSHA’s updated general guidance recommends:

  1. Granting employees paid time off to get vaccinated;
  2. Instructing infected individuals, unvaccinated employees who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms, to stay home from work;
  3. Implementing physical distancing protocols for unvaccinated and at-risk employees in communal work areas;
  4. Providing unvaccinated and at-risk employees with Personal Protective Equipment (PPE) such as face coverings and surgical masks;
  5. Educating and training workers on COVID-19 policies and procedures using easy-to-understand formats and language;
  6. Suggesting unvaccinated third-parties (e.g., customers, visitors, and guests) wear face coverings in the workplace or business;
  7. Maintaining ventilation systems;
  8. Performing routine cleaning and disinfection of the workplace;
  9. Recording and reporting COVID-19 infections and deaths;
  10. Protecting employees from retaliation for raising concerns about COVID-19 related hazards and setting up an anonymous reporting process to voice such concerns; and
  11. Following other applicable mandatory OSHA standards.

Above all, OSHA emphasizes that vaccination is “key” in any multi-layered approach to protect unvaccinated and at-risk employees.  OSHA encourages employees to get the vaccine, noting that the vaccines approved by the FDA are highly effective.  OSHA’s updated guidance further provides safety recommendations to implement in specific work environments that are at a higher risk for exposure to or spread of COVID-19.  These include areas where unvaccinated or at-risk employees are more likely to be in prolonged, close contact with other workers or the public.

Implementing OSHA’s updated COVID-19 related safety measures will best protect your business from liability involving health and safety complaints. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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