October 14, 2021

OSHA Updates COVID-19 Guidance in Response to Surge in Delta Variant Cases

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With the recent uptick in COVID-19 case counts across the country, on August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for employers not otherwise covered by OSHA's COVID-19 Emergency Temporary Standard for healthcare workplaces. OSHA's updated guidance reflects the latest recommendations issued by the Centers for Disease Control and Prevention (CDC) aimed at addressing heightened risks posed by the COVID-19 Delta variant.

While OSHA's guidance remains focused on protecting workers who are unvaccinated or otherwise at-risk (g., immunocompromised), OSHA added new recommendations for fully vaccinated workers who are "located in areas of substantial or high community transmission," as defined by the CDC's COVID-19 Data Tracker. OSHA's updated guidance includes the implementing/reinstating the following protective measures:

  • Masking for fully vaccinated workers in areas of substantial or high transmission. Employers located in areas of substantial or high transmission should require masking in public indoor settings for all employees, regardless of vaccination status. This is due to recent evidence suggesting that fully vaccinated people who become infected with the Delta variant are potentially infectious and could spread the virus to others. Employers are further encouraged to provide face coverings to workers who request them at no cost.
  • Masking for customers, visitors or guests in public indoor settings in areas of substantial or high transmission. Employers located in areas of substantial or high transmission should consider requiring all customers, visitors or guests in public-facing workplaces to wear face coverings; and at the very least should encourage unvaccinated customers, visitors or guests to wear face coverings.
  • Testing for fully vaccinated workers who have a known exposure to COVID-19. Fully vaccinated employees who have a known exposure to someone with suspected or confirmed COVID-19 should get tested in three to five days after exposure and should wear a mask in public indoor settings for 14 days or until they receive a negative test result. Meanwhile, persons who are not fully vaccinated should get tested immediately after a known or suspected exposure, and, if negative, tested again in five to seven days after last exposure (or immediately if symptoms develop).
  • Facilitating and encouraging employee vaccination. OSHA recommends providing employees paid time off to get vaccinated. Employers are also encouraged to work with local public health officials to provide vaccinations in the workplace for unvaccinated individuals. Finally, OSHA suggests 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."

The above recommendations are in addition to OSHA's other recommended mitigation measures aimed at providing protections to unvaccinated and at-risk workers - such as instructing anyone infected with or showing symptoms of COVID-19 to stay home from work, implementing physical distancing for unvaccinated and otherwise at-risk workers in communal work areas, maintaining ventilation systems and performing routine cleaning and disinfection.

While OSHA's updated guidance does not create new legal obligations, it does provide helpful strategies and best practices for reducing risks of exposure and contraction in the workplace.  With the evolving health risks posed by the COVID-19 pandemic, it is important for employers to closely monitor developments at the federal, state and local levels, and update their mitigation measures and protocols as needed.

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