OSHA Issues Long-Awaited COVID-19
Guidance for Employers

On June 10, 2021, OSHA announced two new, eagerly anticipated components of its workplace COVID-19 safety standards and guidance.

Updates to OSHA’s “Protecting Workers” Guidance

First, OSHA updated its guidance for protecting employees from exposure to COVID-19 in the workplace. This guidance is intended to help employers who are not covered by OSHA's new Emergency Temporary Standard (ETS) for healthcare settings take appropriate steps to protect unvaccinated and at-risk employees.

The updated OSHA guidance aligns with the CDC’s recently-issued recommendations, which distinguish between fully vaccinated and unvaccinated employees. Fully vaccinated individuals no longer have to wear masks or physically distance indoors or outdoors, or undergo post-exposure COVID-19 tests. OSHA clarifies that, unless other federal, state, or local laws, rules, or regulations say otherwise, most employers no longer need to take steps to protect fully vaccinated workers who are not otherwise at risk from COVID-19 exposure. OSHA defines an “at-risk employee” by referencing the CDC’s webpages describing Vaccines for People with Underlying Medical Conditions and People with Certain Medical Conditions.

Employers are also reminded that under the Americans with Disabilities Act (ADA), employees with medical disabilities may be entitled to reasonable accommodations to protect them from contracting COVID-19 in the workplace when their disability precludes them from: (1) becoming vaccinated; (2) being fully protected by a vaccination due to an immunocompromising condition; or (3) wearing a face covering. For more information on how to properly consider reasonable accommodations for disabled employees, please refer to CAPLAW’s Building Readiness resource.

OSHA continues to advise employers to engage with workers and their representatives to implement a multi-layered approach to protect unvaccinated employees from contracting COVID-19 in the workplace. Such measures include:

1. ​Grant paid time off for employees to get vaccinated;
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work;
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE;
5. Educate and train workers on your COVID-19 policies and procedures using accessible format and in language they understand;
6. Suggest that unvaccinated customers, visitors, or guests wear fear face coverings;
7. Maintain ventilation systems;
8. Perform routine cleaning and disinfection;
9. Record and report COVID-19 infection and deaths;
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
11. Follow other applicable mandatory OSHA standards.

New Emergency Temporary Standard for Healthcare Employers

Pursuant to a January executive order to consider COVID-19-related emergency temporary standards (ETS), OSHA issued an ETS to supplement existing standards and regulations to address the COVID-19 hazard present in healthcare settings. Because most CAA workplaces are not healthcare settings, the ETS is unlikely to apply to CAAs that do not provide healthcare services.

While the ETS is binding and effective for up to six months (within OSHA’s discretion), it applies only in workplaces where employees provide healthcare services or healthcare support services (i.e., where services are provided to patients by professional healthcare practitioners (doctors, nurses, etc.) for the purposes of promoting, monitoring, or restoring health). Common examples of these settings include hospitals, medical clinics, and long-term care facilities, as well as any settings where support for health services is provided, such as patient intake, maintenance, and hospital cleaning services. Refer to this fact sheet provided by OSHA to confirm whether the ETS applies to your organization’s workplace(s).

Where the ETS applies, employers must:

• implement a COVID-19 plan (which must be written if the employer has more than 10 employees);
• maintain a COVID-19 log; and
• report to OSHA all work-related COVID-19 fatalities and in-patient hospitalizations.

However, the ETS exempts fully vaccinated employees of covered employers from wearing a mask, social distancing, or being subject to physical barriers in “well-defined areas” where there is no reasonable expectation that anyone with a suspected or confirmed case of COVID-19 will be present.

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.