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OSHA Issues New Guidance to Prevent COVID-19 Exposure in the Workplace

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.


[1] The guidance notes it is intended for employers and workers who are not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for Healthcare. Employers and workers covered by the ETS, that is employers and workers who provide healthcare services and healthcare support services as defined by the ETS, should refer specifically to the ETS for more information.

[2] To determine if you are located in a substantial or high community transmission area click here.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XI, Number 230
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About this Author

Mitch Boyarsky Attorney Labor Employment Nelson Mullins New York
Partner

Mitch Boyarsky focuses his practice on labor and employment. He advises clients in a variety of workplace subjects, particularly focused on restrictive covenant, wage and hour, executive contracts matters, transactional employment matters especially related to mergers and acquisitions, disability law compliance measures, and related employment litigation. For more than 25 years, he has represented management in workplace law. Mr. Boyarsky often litigates matters in federal and state court, especially in New Jersey and New York. Such litigations involve alleged employment discrimination,...

646-428-2619
Kelly Hogan Litigation Attorney Nelson Mullins Riley & Scarborough Boston, MA
Associate

Kelly is a member of the litigation group and has experience in litigation from intake to disposition, including a number of jury and bench trials.

617-217-4615
Jessica Jeffrey Commercial Litigation Employment Lawyer Nelson Mullins Boston
Associate

Jessica is a member of the litigation team and concentrates her practice in the areas of commercial litigation, products liability, and employment matters. She has experience in all aspects of civil litigation from initial case investigation to preparation for trial in both federal and state courts. She has experience before the MCAD representing clients throughout the administrative process. 

Jessica represents and counsels clients in various business disputes and employment issues.

617-217-4605
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