On Friday, August 13, 2021 OSHA issued its updated guidance on safety measures it recommends to respond to the increasing number of COVID-19 cases and the Delta variant. There are three primary changes to OSHA’s approach. OSHA now recommends:
- Masks for vaccinated individuals in indoor spaces if the work location is in an area of substantial or high transmission of COVID-19 – previously OSHA had said only unvaccinated individuals needed to mask.
- Masking and testing for vaccinated individuals who have had close contact – previously OSHA was not recommending these special precautions for vaccinated workers, but the Delta Variant and breakthrough infections among the vaccinated have prompted greater caution.
- Employer mandatory vaccines or regular testing – previously OSHA had recommended employers encourage employees to be vaccinated and provide opportunities to get vaccines and testing. Now OSHA is suggesting employers consider mandates.
These changes reflect a shift in the position OSHA is taking. While these are only recommendations, OSHA does have the power to enforce citations related to COVID-19 through its general duty clause. These new guidelines are directed at most employers. However, many healthcare workplace settings will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Employers in those settings must comply with that standard.
Vaccination is the Key Element
OSHA’s revised guidance identifies the vaccination as the “key element” in a multi-layered approach to protect workers. This signals that employers who have a low number of vaccinated workers that are working indoors at their facilities are at the greatest risk for citation by OSHA, especially those in targeted industries described below.
OSHA further stated that employers should grant paid time off for employees to get vaccinated and recover from any side effects. Employers with less than 500 employees are eligible for tax credits under the American Rescue Plan Act if they provide paid time off through September 30, 2021 for COVID-19 vaccinations. These tax credits are available whether the employee receives the vaccine or accompanies a family member or household member to receive the vaccine and/or needs to recover from any potential side effects from the vaccine. The new guidance specifically states: “OSHA 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.” As the number of cases rise, OSHA may change this guidance from a “suggestion” that employers “consider” to a recommendation that employers mandate. This subtle change in language has been OSHA’s pattern as risk of infection increased in the past.
Handling Close Contacts; Isolate the Unvaccinated – Masks and Test the Vaccinated
The next layer of protection OSHA recommends is to instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS- CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. For fully vaccinated people who have had a known exposure, OSHA recommends that the person should wear a mask in public indoor settings for 14 days or until they receive a negative test result. Testing should be performed 3-5 days after the exposure. If the test is negative the mask can then be removed.
People who are not fully vaccinated should be tested immediately after being identified, and, if negative, tested again in 5-7 days after last exposure or immediately if symptoms develop during quarantine. Again, companies with less than 500 employees are eligible for a tax credit when employees are required to be off work under these guidelines.
The third layer of protection OSHA recommends is physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. So far, the OSHA guidance does not identify the need to require social distancing for vaccinated workers. But, if unvaccinated workers are not wearing masks, it is likely that OSHA would consider physical distancing necessary for all workers. Therefore, if an employer wishes to continue to allow vaccinated workers to remove their masks, the employer would be wise to either maintain social distancing for all workers, or require masks for unvaccinated workers in order to meet the employer’s duty under the OSHA General Duty Clause.
OSHA continues to recommend other safety measures, such as improving and maintaining ventilation, symptom screening, physical barriers, education, routine cleaning and disinfecting, recordkeeping and non-retaliation policies.
OSHA also pointed to specific industries that it would target and the measures that would be looked at in those industries including;
In addition to the other measures discussed in this alert, OSHA recommends specific actions in those industry groups while commuting as set forth in the link by clicking on the industry/activity buttons above.
Masks Under New OSHA Guidance
While OSHA still recommends face coverings or surgical masks as appropriate for unvaccinated individuals, vaccinated workers may still remain mask free according to OSHA, so long as they do not have underlying medical risks, or work in a location where there is a substantial or high rate of transmission. Unfortunately, due to the increasing number of cases, many areas have exceeded, or may soon exceed, those substantial or high transmission rates. This has led many employers to ask if they need to require employees to return to wearing masks.
The idea of enforcing a mask mandate again is causing significant concern among many employers who fear losing workers to other employers who do not require masks. This has prompted many employers to contact us in recent weeks asking about vaccination mandates, in lieu of mask mandates. This is a difficult choice. Some employers are even advertising for workers promising not to require masks or a vaccine.
Under the new OSHA guidance there are 11 areas of recommendation that are discussed. Wearing of masks by vaccinated workers is not the highest priority for OSHA. Rather, getting workers vaccinated is the highest priority. So long as employers are taking great efforts to get workers vaccinated; and have significant vaccination rates (at least above 60%); and are maintaining social distancing for unvaccinated workers; and are providing masks free of charge; and providing pay for individuals who go to get a vaccination or a test on a regular basis, it is likely that OSHA would consider the employer to have met its general duty obligation, even if the employer does not require workers to wear a mask, or mandate vaccination.
Requiring vaccinated workers to wear a mask may reduce the likelihood that employees would be willing to get a vaccination. That may undermine OSHA’s highest priority – vaccinations. There is strong argument for a policy that gives employees three (3) choices: masks, vaccines, or regular testing. While OSHA would like employers to require a mask as well as a vaccine or testing in areas of substantial or high transmission, that is a significant burden and a risk of losing employees for most employers if the number of infections increases in a particular workplace. The soundest policy for compliance with the employer’s general duty under the OSHA Act, while having a hope to attract and retain needed employees, is to provide a choice between the three (3) options.
It is expected that the Emergency Use Authorization for the Moderna and Pfizer vaccines will come in early September. Employers should adjust their policies consistent with this new guidance focusing on the employer policy concerning masks, testing, and vaccines. This is especially true for the targeted industries noted above. In the meantime, employers should continue to manage physical distancing, screening for symptoms, routine cleaning, ventilation, contact tracing, and quarantine. In other words, restore the practices that existed last spring.
For questions regarding the new OSHA guidance and policy development, please contact Chuck Palmer or Denise Greathouse.
*Michael Best Strategies Policy Consideration
Many employers are struggling to find workers and to retain the workers that they have. So, it is not surprising that most employers do not want to continue requiring mask wearing or implementing a vaccination/testing mandate. However, in areas of high transmission, choosing one of these options may be a necessity. In many ways the labor shortage that the United States is experiencing has diminished the ability of employers to carry out COVID-19 safety measures that federal and state governments have been delegating to employers. It may be time for governments to stop relying upon employers to carry out public health efforts, or for the federal government to adopt immigration reform which may allow employers to hire or retain only employees that are willing to be vaccinated or tested or wear masks.
For assistance on these policy and government reform matters, contact Denise Bode at Michel Best Strategies.
Preview Attorney's Biography
Denise represents management clients in regard to labor and employment matters. Clients in sectors such as construction, transportation, manufacturing, healthcare, food, and education turn to her for informed guidance on matters involving Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) issues, including investigating, defending citations, and assisting with abatement.
Preview Attorney's Biography
Chuck is a go-to lawyer for complex cases involving OSHA, employment law, labor negotiations, independent contractor and joint employment matters. Clients rely on his years of experience in dealing with state and federal enforcement agencies to develop human resource, safety and environmental policies and practices that prevent problems and save them significant expense. Chuck has defended employers in more than 1,000 Occupational Safety and Health Administration (OSHA) citation cases over the past 26 years.