The U.S. Department of Labor’s Occupational Safety Health Administration (OSHA) issued new guidance on Aug. 13, 2021, which provides recommendations for employers to prevent COVID-19 exposure in the workplace. The latest guidance is specifically aimed at protecting unvaccinated workers[1], high risk workers, and those who are located in “areas of substantial or high community transmission.”[2]

Consistent with prior Centers for Disease Control (CDC) guidance, the OSHA guidance urges employers to institute policies that encourage employees to get vaccinated as the most effective method to protect against COVID-19. OSHA recommends that employers implement policies that provide paid time off to obtain the vaccine and/or to recover from possible side effects after the vaccine. Employers should encourage unvaccinated employees to undergo regular COVID-19 testing, wear a mask and practice social distancing.

In light of the Delta variant and the continued risk of COVID-19 infection even after vaccination, the OSHA guidance further recommends employers institute the following protocols:

• Instruct workers to stay home from work if they have had close contact with someone who tested positive for COVID-19 and/or are suffering from symptoms related to COVID-19. Employers should review their sick time policies to encourage workers to not report to a work site when sick or after exposure to COVID-19;
   
• Require physical distancing in all shared or common work areas for unvaccinated and at-risk workers. Physical barriers may be used when social distancing is not possible. Consider implementing flexible work models, such as staggered schedules or rotating shifts, to minimize exposure;
   
• Provide workers with face coverings at no charge and encourage employees — who are at high risk, have a family member at high risk, are not fully vaccinated or work in an area of substantial or high transmission — to wear face masks when in public indoor settings. Employers should follow federal anti-discrimination laws that may require reasonable accommodations for workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or religious belief;
   
• Provide accessible education and training on COVID-19 policies and procedures. Trainings should include information explaining how COVID-19 spreads, the importance of protecting oneself, and who to contact about questions or concerns;
   
• Suggest or require that unvaccinated customers, visitors, or guests wear face coverings when engaging in face to face interactions between customers and workers (e.g., retail establishments);
   
• Utilize and maintain a ventilation system that functions properly;
   
• Perform routine cleaning and disinfection;
   
• Record and report COVID-19 infections and deaths as required by OSHA regulations;
   
• Implement protections against possible retaliation claims by providing an anonymous process for workers to voice concerns about COVID-19-related hazards; and 
   
• Continue to follow other applicable mandatory OSHA standards to protect workers from infection.

OSHA’s Aug. 13, 2021 guidance should be followed in conjunction with any applicable state and local requirements for COVID-19 prevention and protection in the workplace, such as the New York HERO Act about which Nelson Mullins previously blogged (https://www.nelsonmullins.com/idea_exchange/blogs/the-hr-minute/employee-benefits/ny-hero-act-for-infectious-disease-prevention-is-on-the-horizon-for-employers).

For more information or specific advice on any of COVID-19 matters for the workplace, please feel free to contact Mitch Boyarsky or an attorney in the Nelson Mullins Employment and Labor Practice Group.