OSHA Updates its COVID-19 Guidance for Non-Healthcare Industries

The Occupational Safety and Health Administration's (OSHA) latest update to its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace arrived on August 13, 2021. Quarles & Brady previously reported on the initial guidance here. The August 13 updates largely reiterate and adopt the CDC’s latest Interim Public Health Recommendations for Fully Vaccinated People, which Quarles & Brady also covered in a prior article. This OSHA update does not impact its Emergency Temporary Standard relating to healthcare employers.

In its update, OSHA elaborates on its prior recommendations regarding workplaces with both vaccinated and unvaccinated employees. The agency “strongly encourages” employers to provide employees with paid time off to receive vaccination doses and recover from any side effects of the vaccine. OSHA also remarked that, in addition to masking and physical distancing policies, employers should consider adopting policies that require unvaccinated workers to receive the vaccine or undergo regular COVID-19 testing if they remain unvaccinated.

OSHA mentions the CDC’s preliminary findings that although only a small proportion of people who are vaccinated have breakthrough infections (even from the Delta variant), those who become infected can spread the virus to others. In order to reduce the risk of fully vaccinated people becoming infected with COVID-19 and spreading it to others, OSHA recommends that employees:

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

OSHA’s updated guidance also designates manufacturing; meat, seafood, and poultry-processing; high-volume retail and grocery; and agricultural processing settings as “higher-risk” workplaces, and contains recommendations regarding protecting employees in these higher-risk workplaces.

What this means for employers?

Employers should continue to regularly reassess their COVID-19 workplace safety policies, taking into consideration any factors specific to their workplace that may result in a heightened risk of exposure for their employees. Although the recommendations within the updated guidance are advisory in nature, OSHA does have the ability to cite an employer under its General Duty Clause even in the absence of a specific provision. OSHA continues to emphasize that vaccination is a key step in protecting individuals in the workplace and recommends that employers adopt and utilize a multi-layered approach to reducing the spread of COVID-19 in the workplace. There is no one-size-fits all solution, and employers must stay apprised of and implement safety practices based on current recommendations.

We encourage employers to attend Quarles & Brady upcoming September 8, 2021 webinar for an update on the latest legal and business developments on workplace COVID-19 vaccination policies and practices as well as other critical management issues as we head into the fall with the Delta variant. This webinar will provide practical guidance to address the most difficult issues faced by employers.

For questions on the latest OSHA guidance and how it impacts your workplace, please contact your local Quarles & Brady attorney or:

• Christopher L. Nickels: (414) 277-5519 / christopher.nickels@quarles.com
• William A. Walden: (312) 715-5111 / william.walden@quarles.com
• Alexis Barkis: (239) 659-5048 / alexis.barkis@quarles.com