On Friday, August 13, 2021, OSHA issued an updated Guidance document regarding COVID-19 Plans and the General Duty Clause. OSHA has now adopted CDC’s July 27th, 2021 Protocol in which Fully Vaccinated employees must wear masks indoors in “Substantial” or “High” Transmission areas.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published updated guidance aimed at further mitigating and preventing the spread of COVID-19 in the workplace. OSHA’s updated guidance tracks the Centers for Disease Control and Prevention’s (CDC) July 27, 2021, mask and testing recommendations for all employees—including those already fully vaccinated.

OSHA’s updated COVID-19 guidance applies to all workplaces not covered by OSHA’s healthcare services Emergency Temporary Standard. Although it creates no new legal obligations for employers, it does indicate what OSHA will expect from them.

While OSHA states that the “Guidance” is not a “Standard,” the General Duty Clause is mentioned in substance and by name several times, amounting to OSHA indicating that OSHA will consider the Guidance likely to suffice for employers to have “knowledge” of a hazard likely to cause death or serious illness. Since March 2020, OSHA’s Guidance has continually urged employers to have a written COVID-19 Plan. Healthcare employers are required unless exempt or excepted to have a written COVID-19 Plan as of a final date of July 21st under the Emergency Temporary Standard. All other employers should strongly consider, more than ever, a written COVID-19 Plan with visible signs of protective measures in the workplace to seek to avoid an OSHA General Duty Clause citation in the event of an outbreak with one in-patient hospitalization or other inspection that can be expanded into a COVID-19 inspection due to the National Emphasis Program updated by OSHA on July 7, 2021.

Summary of Guidance for Non-Healthcare Employers

OSHA’s updated COVID-19 guidance includes recommended steps employers should take to protect their employees and prevent the spread of COVID-19:

  • Facilitate employees getting vaccinated, including by granting employees paid time off to get vaccinated and recover from any side effects;
  • Instruct all employees to stay home if they test positive or present symptoms of COVID-19, and also instruct unvaccinated employees to stay home if they have had close contact with someone who has tested positive;
  • Implement physical distancing for unvaccinated and at-risk employees in communal work areas;
  • Provide all employees with face coverings or surgical masks unless their job duties require the use of a respirator or other personal protective equipment;
  • Provide employee training on the employer’s COVID-19 policies and procedures in accessible formats and in languages understood by employees;
  • Suggest or require unvaccinated visitors wear face coverings and that all visitors wear face coverings in public, indoor settings in areas of substantial or high transmission;
  • Maintain ventilation systems, including installing MERV-13 or better air filters, and use HEPA filters in high-occupancy or limited ventilation spaces;
  • Perform routine cleaning and disinfection, including CDC cleaning and disinfection recommendations within 24 hours of any suspected or confirmed COVID-19 case;
  • Record and report work-related COVID-19 infections and deaths;
  • Prohibit retaliation against employees voicing concerns about COVID-19-related hazards and set up an anonymous process for workers to voice such concerns; and
  • Continuing to follow all other applicable OSHA standards.

Guidance can be found here.