The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued updated guidance on mitigating and preventing the spread of COVID-19 in the workplace. The updated guidance largely aligns with the latest information from the Centers for Disease and Prevention regarding protecting workers who are unvaccinated or otherwise at-risk from COVID-19.

OSHA’s guidance recommends that fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers and that fully vaccinated workers who have close contacts with someone with COVID-19 wear a mask for up to 14 days unless they have a negative COVID test at least 3-5 days after the contact. The guidance 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 continues to emphasize that vaccination is the most effective way to protect against severe illness and death from COVID-19. It also recommends that employers implement multiple layers of controls, including implementing mask and social distancing policies and increasing ventilation where possible. Other key pieces of the guidance are summarized below.

Updated Guidance for Employers

According to the updated guidance, employers should:

  1. Facilitate employees getting vaccinated, including providing paid time off for employees to get vaccinated and recover from any side effects;
  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work;
  3. Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers, including limiting the number of unvaccinated or otherwise at-risk workers in one space at a time, where possible (e., teleworking, staggering shifts, flexible meeting and travel options);
  4. Provide all workers, including those who are fully vaccinated, with face coverings or surgical masks at no cost, as appropriate, unless their work task requires a respirator or other personal protective equipment (“PPE”);
  5. Educate and train workers (including employees, contractors, and any other individuals on site, as appropriate) on the workplace’s COVID-19 policies and procedures using accessible formats and in languages that workers understand;
  6. Suggest or require that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission;
  7. Maintain ventilation systems, including ensuring heating, ventilation, and air conditioning (HVAC) systems are operating properly, conducting regularly scheduled inspections, maximizing natural ventilation in buildings without HVAC systems by opening windows and doors where possible, and considering the use of portable air cleaners in spaces with high occupancy or limited ventilation;
  8. Perform routine cleaning and disinfection, including following CDC cleaning and disinfection recommendations where someone suspected of having or confirmed to have COVID-19 has been in the workplace facility within 24 hours;
  9. Record and report COVID-19 infections and deaths, in compliance with mandatory OSHA rules;
  10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards;
  11. Follow other applicable mandatory OSHA standards, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.

OSHA’s guidance (consistent with guidance from the EEOC) reiterates that “[u]nder federal anti-discrimination laws, employers may need to provide reasonable accommodations for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII of the Civil Rights Act of 1964.”

The updated guidance also provides information on protecting unvaccinated and otherwise at-risk workers in specific industries where there is often prolonged close contact with other workers, such as high-volume retail and grocery; manufacturing; and meat, poultry, and seafood processing settings.

Takeaways for Employers

While the updated guidance is advisory, rather than mandatory, in nature and creates no new legal obligations for employers, it does provide practical guidance for employers on how to satisfy their obligation under the OSHA general duty clause to provide a safe and healthy workplace free from recognized hazards. Therefore, employers may wish to consult this guidance – along with other applicable federal, state and local guidance – when updating their COVID-19 re-entry and workplace health and safety policies.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Harris Mufson Harris Mufson

Harris M. Mufson is a partner in Proskauer’s Labor & Employment Law Department, where he serves as co-head of the Firm’s Whistleblowing & Retaliation Practice Group and the Disability, Accommodation & Leave Management Practice Group. He is highly regarded as a trusted advisor…

Harris M. Mufson is a partner in Proskauer’s Labor & Employment Law Department, where he serves as co-head of the Firm’s Whistleblowing & Retaliation Practice Group and the Disability, Accommodation & Leave Management Practice Group. He is highly regarded as a trusted advisor to clients in a wide range of industries regarding significant employment issues. Harris has vast expertise in employment matters, representing employers in disputes regarding discrimination and retaliation, whistleblowing, sexual harassment, wrongful discharge, defamation, breach of contract, wage and hour, and restrictive covenants. In addition to litigating, Harris counsels clients on compliance with employment-related laws, as well as the development, implementation and enforcement of personnel policies and procedures. Additionally, he has conducted numerous internal investigations regarding sensitive employment matters.

Photo of Alex Downie Alex Downie

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned…

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes.

Photo of Megan Childs Megan Childs

Megan Childs is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.