The Occupational Safety and Health Act of 1970 requires employers to provide workers a place of employment free from recognized hazards to safety and health. Consistent with this requirement, on June 9, 2021, the Occupational Safety and Health Administration (OSHA) issued a COVID-19 emergency temporary standard (ETS) applicable to all settings where employees provide healthcare services or healthcare support services. OSHA also issued new COVID-19 guidance for all industries not covered by the ETS (i.e. for all industries aside from those providing healthcare services or healthcare support services). This guidance focuses on protecting workers who are not vaccinated or who are otherwise at risk in the workplace. OSHA defines “at-risk” workers as those individuals who have conditions, described by the CDC here and here, impacting their ability to have a full immune response to vaccination.
Under the new COVID-19 guidance, OSHA is urging employers to take the following steps to protect their unvaccinated or otherwise at-risk workers:
- Provide employees with paid leave for the COVID-19 vaccination: The refundable Families First Coronavirus Response Act (FFCRA) tax credit may be available to businesses who provide paid leave for receiving the COVID-19 vaccination and recovering from the vaccination.
- Institute workplace policies that instruct and encourage COVID-19-positive, unvaccinated workers who have had close contact with a COVID-19-positive individual, and all workers experiencing symptoms to stay home without penalties: The FFCRA tax credit may be available to businesses who provide paid sick and family leave for COVID-19-related reasons.
- Promote distancing of unvaccinated and at-risk workers in workplace common areas: Employers can limit the number of unvaccinated or otherwise at-risk workers in one work area at any given time by, for example, implementing flexible worksites and shifts. If employees in a specific work area cannot be separated, employers can separate such employees with solid barriers (e.g., transparent shields).
- Provide face coverings for unvaccinated and at-risk workers at no cost, unless their work requires other PPE like a respirator: Unvaccinated or otherwise at-risk workers should wear face coverings, and employers should provide face coverings at no cost. Employers can refer to CDC guidance on masks. Employers may need to provide reasonable accommodations to workers for disability or religious reasons under Title VII. If PPE is necessary at the worksite, employers should follow relevant mandatory OSHA standards and may contact an OSHA professional for help determining the proper face covering.
- Train all workers on the COVID-19 policies and procedures in the workplace: Employers should train managers on how to properly implement these policies and train employees, contractors, and other people at the worksite on such policies. These trainings should explain the basic facts about COVID-19 and the policies in place to protect workers from the spread of COVID-19. Employers should also ensure workers know their rights (e.g., can raise concerns about COVID-19 risks in the workplace without retaliatory disciplinary action).
- Recommend unvaccinated customers, visitors, or guests wear face coverings, especially in workplaces where unvaccinated or at-risk workers interact with customers
- Maintain and/or improve ventilation systems in the workplace: To improve ventilation, employers should ensure the HVAC system is operating properly, conduct regular inspections and maintenance procedures for such systems, and install air filters with a Minimum Efficiency Reporting Value (MERV) of 13 or higher (where feasible). If the worksite does not have an HVAC system, employers may open the doors and windows (when conditions permit this) for natural ventilation.
- Perform routine cleaning and disinfection: Employers can refer to CDC cleaning and disinfection recommendations for guidance on cleaning and disinfection.
- Record and report work-related COVID-19 infections and deaths: Employers must record work-related cases of COVID-19 infection on OSHA’s Form 300 logs if the case (1) is a confirmed COVID-19 case; (2) is work-related; and (3) involves at least one relevant recording criteria. For further information, employers can refer to OSHA’s website. Employers do not need to record adverse reactions to the COVID-19 vaccination.
- Protect workers from retaliation and establish an anonymous process for workers to voice COVID-19-related concerns: The Occupational Safety and Health Act of 1970 prohibits reprisal or discrimination against an employee for taking occupational safety and health actions (e.g., raising concerns about COVID-19 hazardous working conditions, reporting COVID-19 infection or exposure, or reporting a work-related illness to an employer). Employers should ensure that workers know their rights and know whom to contact with concerns.
- Follow other applicable mandatory OSHA standards and regulations: Mandatory OSHA standards include PPE requirements, respiratory protection, sanitation, protection from bloodborne pathogens, and employee access to medical and exposure records requirements.
Updated July 9, 2021