UPDATED COVID-19 GUIDANCE FOR EMPLOYERS AND WORKERS

On June 10, 2021, the U.S. Department of Labor updated COVID-19 guidance for employers and workers. These are for groups not covered by the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Emergency Temporary Standard (ETS). This addresses the need to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection. The changes in guidance (1) focus protections on unvaccinated and otherwise at-risk workers, (2) encourage Covid-19 vaccination and (3) add links to guidance with the most up-to-date content.

The CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, the CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. People are considered fully vaccinated for COVID-19 two weeks or more after they have completed their final dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration in the United States. However, CDC suggests that people who are fully vaccinated but still at-risk due to immuno-compromising conditions should discuss the need for additional protections with their healthcare providers. CDC continues to recommend precautions for workers in certain transportation settings.

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).¹

The guidance contains recommendations as well as descriptions of mandatory safety and health standards, the latter of which are clearly labeled throughout as “mandatory OSHA standards.” The recommendations are advisory in nature and informational in content, and are intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

While the guidance addresses many workplaces, many healthcare workplace settings will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Pursuant to the Occupational Safety and Health Act (the OSH Act or the Act), employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

What workers need to know about COVID-19 protections in the workplace

COVID-19 spreads mainly among unvaccinated people who are in close contact with one another especially in poorly ventilated spaces.

Vaccination is the key in a multi-layered approach to protect workers. Learn about and take advantage of opportunities that your employer may provide to take time off to get vaccinated. Vaccines authorized by the U.S. Food and Drug Administration are highly effective at protecting vaccinated people against symptomatic and severe COVID-19 illness. According to the CDC, a growing body of evidence suggests that fully vaccinated people are less likely to have symptomatic infection or transmit the virus to others.

If you are unvaccinated or otherwise at-risk (e.g., because of a prior transplant or other medical condition), you should follow recommended precautions and policies at your workplace. Many employers have established COVID-19 prevention programs that include a number of important steps to keep unvaccinated and otherwise at-risk workers safe. These COVID-19 prevention programs include measures such as telework and flexible schedules, enhanced cleaning programs with a focus on high-touch surfaces, engineering controls (e.g., ventilation), administrative policies (e.g., vaccination policies), personal protective equipment (PPE), face coverings, and physical distancing. Ask your employer about plans in your workplace. In addition, employees with disabilities who are at-risk may request reasonable accommodation under the ADA.

Even if your employer does not have a COVID-19 prevention program, if you are unvaccinated or otherwise at-risk, you can help protect yourself by following the steps listed below:

• Identify opportunities to get vaccinated. Ask your employer about opportunities for paid leave, if necessary, to get vaccinated and recover from any side effects.
• Properly wear a face covering over your nose and mouth. Face coverings are simple barriers worn over the face, nose and chin. They work to help prevent your respiratory droplets or large particles from reaching others. If they are of high enough quality, they also provide a measure of protection to the people wearing them. CDC provides general guidance on masks. If you are working outdoors you may opt not to wear face coverings in many circumstances; however, you should be supported in safely continuing face covering use if you choose, especially if you work closely with other people.
• Stay far enough away from other people so that you are not breathing in particles produced by them – generally at least 6 feet (about 2 arm lengths), although this approach by itself is not a guarantee that you will avoid infection, especially in enclosed or poorly ventilated spaces. Ask your employer about possible telework and flexible schedule options at your workplace, and take advantage of such policies if possible. Perform work tasks, hold meetings, and take breaks outdoors when possible.
• Participate in any training offered by your employer/building manager to learn how rooms are ventilated effectively and notify the building manager if you see vents that are clogged, dirty, or blocked by furniture or equipment.
• Practice good personal hygiene and wash your hands often. Always cover your mouth and nose with a tissue, or the inside of your elbow, when you cough or sneeze, and do not spit. Monitor your health daily and be alert for COVID-19 symptoms (e.g., fever, cough, or shortness of breath).

COVID-19 vaccines are highly effective at keeping you from getting COVID-19. If you are not yet fully vaccinated, or are otherwise at risk, optimum protection is provided by using multiple layers of other interventions that prevent exposure and infection.

The role of employers and workers in responding to COVID-19

Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.

CDC’s Interim Public Health Recommendations for Fully Vaccinated People are directed at individuals and explains that fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. See CDC’s Exceptions to COVID-19 Recommended Precautions for Fully Vaccinated People.

Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.²

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Grant paid time off for employees to get vaccinated.
2. 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.
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand.
6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests.
7. Maintain Ventilation Systems.
8. Perform routine cleaning and disinfection.
9. Record and report COVID-19 infections and deaths.
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.

Additional steps employers should take

According to the guidance, Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:

• Close contact– where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
• Duration of contact – where unvaccinated or otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
• Type of contact – unvaccinated or otherwise at-risk workers who may be exposed to the infectious virus through respiratory droplets in the air—for example, when unvaccinated or otherwise at-risk workers in a manufacturing or factory setting who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
• Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workersinclude:
  • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
  • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
  • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

• Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
• Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
• Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.

In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:

• Working on food processing or assembly lines can result in virus exposure because these workplaces have often been designed for a number of workers to stand next to or across from each other to maximize productivity. Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.

In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:

• Suggest masks for unvaccinated (or unknown-status) customers and other visitors.
• Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
• Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
• Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.

For additional information on the Department of Labor’s guidance and regulations, visit https://www.dol.gov/ .

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¹ CDC recommends that fully vaccinated people should nonetheless:

• watch out for symptoms of COVID-19, especially if they have been around someone who is sick. If they have symptoms of COVID-19, they should get tested and stay home and away from others.
• monitor for symptoms of COVID-19 for 14 days following an exposure.

² The DOL recommends that schools should continue to follow applicable CDC guidance.