On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) issued new employer guidance on mitigating and preventing the spread of COVID-19 in the workplace. This guidance is intended to help employers and workers outside the healthcare setting to identify risks of being exposed to and of contracting COVID-19 and to determine any appropriate control measures to implement. While this guidance is largely duplicative of prior OSHA and Centers for Disease Control and Prevention (“CDC”) guidance and recommendations, it contains a few new and updated recommendations that employers should note:
OSHA recognizes that face coverings, either cloth face coverings or surgical masks, are simple barriers that help prevent the spread of COVID-19, and are beneficial for the wearer as well as others. OSHA recommends that employers should provide all workers with face coverings, unless their work task requires a respirator. These face coverings should be provided at no cost and should be made of at least two layers of tightly woven breathable fabric, and should not have exhalation valves or vents. Employers should also require any other individuals at the workplace (i.e., visitors, customers, non-employees) to wear a face covering unless they are under the age of 2 or are actively consuming food or beverages on site. Wearing a face covering does not eliminate the need for physical distancing of at least six feet apart.
Employers must discuss the possibility of “reasonable accommodations” for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability. In workplaces with employees who are deaf or have hearing deficits, employers should consider acquiring masks with clear coverings over the mouth.
OSHA recommends that employers should make a COVID-19 vaccine available at no cost to all eligible employees, and should also provide information and training on the benefits and safety of vaccinations. Employers should not distinguish between workers who are vaccinated and those who are not. All employees should follow protective measures, including wearing a face covering and practicing physical distancing, because there currently is no evidence that the vaccines prevent transmission of the virus.
OSHA recommends that a worker who has recovered from symptoms after testing positive for COVID-19 should be tested again only if the worker develops new symptoms of possible COVID-19 because a worker may continue to test positive for three months or more without being contagious to others. If they have new symptoms, they should discuss getting tested again with their healthcare provider, especially if they have been in close contact with another person who has tested positive for COVID-19 in the last 14 days. The CDC reports that instances of reinfection have so far been infrequent. The CDC does not recommend that employers use antibody tests to determine which workers can work, as such tests have not been found to be very reliable.
COVID-19 Prevention Program
The guidance states that implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work. Effective programs engage workers in the development and implementation of the program at every step, and include the following elements:
•Assignment of a workplace coordinator.
•Conducting a hazard assessment to identify potential workplace hazards related to COVID-19 and identify a combination of measures that will address these potential hazards (see more specific guidance below).
•Consideration of protections for workers at higher risk for severe illness through supportive policies and practices.
•Establishment of a system for communicating effectively with workers about possible COVID-19 hazards, and educating and training workers on the employer’s COVID-19 policies and procedures using accessible formats and in a language they understand.
•Instructing workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19, and minimize the negative impact of quarantine and isolation on workers through flexible work arrangements and paid sick leave policies.
•Isolation of workers who show symptoms at work and performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility.
•Following state or local guidance and priorities for screening and viral testing in workplaces.
•Recording and reporting COVID-19 infections and deaths to OSHA.
•Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
•Do not distinguish between workers who are vaccinated and those who are not; all workers must follow protective measures.
•Complying with all other applicable OSHA standards.
The guidance provides further detail about when workers should isolate or quarantine and for how long, implementing physical distancing in communal work areas and/or installing barriers in the workplace, providing all workers with face coverings, improving ventilation, using personal protective equipment when necessary, providing the supplies necessary for good hygiene practices, and performing routine cleaning and disinfection.
Implication for Employers
California employers will notice that the above recommendations are similar to the requirements found in California’s COVID-19 emergency temporary standards, and while the above guidance is not a standard or regulation and does not create new legal obligations, OSHA has stated that it is considering implementing an Emergency Temporary Standard that is likely to be based on the above recommendations. Employers should carefully review their existing COVID-19 Prevention Programs against OSHA’s recommendations and make an effort to implement additional measures that are appropriate and feasible.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.