By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Today OSHA updated its Protecting Workers Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to adopt recommendations “analogous” to the July 27, 2021 Centers for Disease Control and Prevention (CDC) mask and testing recommendations for fully vaccinated people.

OSHA designed its guidance to assist employers in protecting workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at-risk, and to implement new guidance for workers who are fully vaccinated but located in areas of substantial or high community transmission.

The guidance contains recommendations as well as descriptions of OSHA’s mandatory safety and health standards. OSHA notes that the recommendations are advisory in nature and informational in content and are “intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” The most significant recommendation is that employers follow the CDC’s recent updated recommendations for fully vaccinated people including by:

  • wearing a mask in public indoor settings in areas of substantial or high transmission;
  • choosing to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
  • getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.

In the guidance, OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects. OSHA also suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.

OSHA reiterates that while the guidance addresses most workplaces, many healthcare workplace settings will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Pursuant to the Occupational Safety and Health Act, employers in those settings must comply with that standard. All employers must comply with any other applicable mandatory safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Employers who are not covered by the OSH Act (like public sector employers in some states) will also find useful control measures in this guidance to help reduce the risk of COVID-19 in their workplaces.

Employers should be wary of OSHA’s labeling this guidance as “advisory,” particularly where the Agency points specifically to enforcement avenues, including the General Duty Clause. Implementing these recommendations, and following CDC guidance, should provide employers some peace of mind in addressing enforcement exposure.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.