Reacting to COVID-19 Delta Variant Outbreaks, OSHA Issues Updated Guidance

The Occupational Safety Health Administration (OSHA) issued updated guidance on August 13, 2021, to assist employers in protecting workers who are unvaccinated or otherwise at risk of contracting the virus. The guidance consists primarily of recommendations and seeks to align its approach with guidance issued by the Centers for Disease Control (CDC). CDC and OSHA guidance interact, but Employers have a specific legal obligation under OSHA to provide a safe and healthy workplace free from recognized hazards that are likely to cause death or serious physical harm.

OSHA recommends that employers consider "multi-layered interventions" to protect the unvaccinated and otherwise "at-risk" workers and mitigate the spread of COVID-19. The steps recommended by OSHA include:

• Granting paid time off to allow employees to get vaccinated and recover from any side effects. OSHA notes that businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan Act if they provide paid time off through September 30, 2021.
• Being vigilant about workers exposed to COVID-19 in the workplace and instruct any workers who are infected—or unvaccinated workers who have had close contact with someone who tested positive—to stay home from work.
• Implementing physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
• At fixed work stations where unvaccinated or otherwise at-risk workers are not able to remain six feet away from other people—put in place transparent shields or other solid barriers to separate these workers from others. These barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets.
• Continue to provide workers with face coverings and surgical masks, as appropriate, unless the work task requires a respirator or other personal protective equipment. These face coverings should cover both the nose and mouth to protect others and potentially the mask's wearer.
• Continue to train workers on the employer's COVID-19 policies and procedures, using accessible formats. This training should include instruction for managers on how to implement internal COVID-19 policies. Training should include basic facts about COVID-19, how it is spread and the importance of physical distancing, use of masks and basic hygiene principles, and educate workers on workplace policies and procedures designed to protect them from COVID-19 hazards.
• Suggest or require that unvaccinated visitors wear masks in public-facing workplaces and in public indoor settings in substantial or high transmission areas.
• Maintain ventilation systems.
• Perform routine cleaning and disinfection of employee workstations.
• Record and report COVID-19 infections and death.
• Implement protections from retaliation and set up an anonymous process for workers to express concerns about COVID-19-related hazards.

Employers are required to record work-related cases of COVID-19 on Form 300 logs if: 

• the case is a confirmed case of COVID-19;
• the case is work-related (as defined by 29 CFR 1904.5); and
• the case involves one or more relevant recording criteria, such as medical treatment, days away from work, and so on. Employers also must follow the requirements in 29 CFR, Part 1904 when reporting COVID-19 fatalities and hospitalizations.

The guidance also clarifies certain key concepts, such as what constitutes close contact or other factors that may increase risk among the unvaccinated or otherwise at-risk workers. Finally, the guidance contains several practical suggestions on how to mitigate workplace risks.